1. This suit relates to an old silted-up tank which hasrecently been improved at considerable expense by the principal defendants forthe benefit of the village at large.

2. It appears that before the tank was leased to thesedefendants it lay practically useless, and the rank grass which grew thereonwas taken by the second party defendants for feeding their elephants. Now thatthe silted-up tank has been improved by the principal defendants, theplaintiffs bring this suit for the purpose of obtaining hkas possession jointlywith the lessors, or with the lessees as the Court may direct. Their case isthat they are fractional sharers of the land in which this tank is situated.According to their own statement they are owners of a three anna eleven gundashare only, whilst the lessor defendants own more than twelve annas. It hasbeen found by both the Lower Courts that the lessor defendants were inexclusive possession of this silted-up tank, and made use of it for theirelephants, the services of which the plaintiffs sometimes obtained. Writtenstatements were filed on behalf of both sets of defendants, in which theydenied that the plaintiff had any interest in the land in suit, alleging thatit belonged to another taluq They also contended that as there was a great wantof drinking water for the tenants of the village, the principal defendants tooka settlement of the tank on an annual jama of Rs. 4 and payment of a nazzur orbonus of Rs. 50, that they re-excavated the tank at the expense of Rs. 700, andraised embankments and improved it, and made it fit for the supply of water tothe village.

3. Munsif found that the tank belonged to the plaintiffs aswell as to the lessor defendants. He also found that although it was all alongin the exclusive possession of the latter, such possession was with thepermission of the plaintiffs. and considering that the lessee defendants hadimproved it at their own expense, and that the plaintiffs had not raised anyobjection at the time of the excavation, he made a decree, declaring theplaintiffs right and giving possession through the tenants. The claim for khaspossession was accordingly dismissed.

4. The plaintiffs appealed, and the Subordinate Judge hasaffirmed the judgment of the First Court.

5. In second appeal to this Court a most ingenious argumenthas been raised by the learned pleader for the appellant on the basis of thecase of Watson and Co. v. Ramchund Dutt I.L.R (1890) . 18 Cal. 10.; L.R. 17IndAp 110. To this contention we shall presently refer. In order to deal withthis argument it is necessary however to mention the findings of fact arrivedat by the Lower Appellate Court. It has been found that the silted-up tank wasall along in the possession of the lessor defendants; that possession was nodoubt of a permissive character so far as the plaintiffs were concerned. It hasalso been found that the plaintiffs never raised any objection when the lesseedefendants were excavating and improving the tank. They allowed them to spendtheir money for its improvement, and now that the property has been improvedand has become really valuable, they turn round and ask that joint possessionbe given to them along with the lessee defendants.

6. The silted-up tank was yielding no profit to anybody. Ifthe lessor defendants acted beyond what they were entitled to, it was whatwould be called in English Law ameliorating waste. They settled the tank withthe lessee defendants who improved it, and a rent of rupees 4 is now derivedtherefrom. The Courts below have given the plaintiffs a decree for their shareof the rent.

7. Babu Lal Mohun Das, for the plaintiffs contends, however,that inasmuch as their Lordships of the Judicial Committee in the case referredto above had used the expression that when one co-sharer exercises right"not in denial of the right" of the other co-sharer, his act cannotbe impugned by the latter, it must be taken that principle laid down by theirLordships is not applicable to a case where there is a denial of theco-sharers title as in this case; and consequently the plaintiffs are entitledto recover khas possession in respect of their share.

8. The argument is ingenious but when examined has nosubstance. An assertion or denial of a right in a written statement does notgive rise to a cause of action. A cause of action must be antecedent to anyallegation made in the pleadings. In the second place, their Lordships of thePrivy Council were dealing with the facts of that case and the specialexpressions must be confined to those facts. We have only to concern ourselveswith the principle laid down; and the principle which we gather from that andother cases is this, that when one co-sharer is holding possession of a certainland and deals with it in a particular way and in the ordinary course, if theother co-sharers are not satisfied with that dealing or with that course of conduct,their proper remedy is by partition. In a partition suit the rights of all theparties are adjudged upon a proper basis, and any loss or damage suffered byone set of partners is made good at the expense of the other.

9. It seems to us therefore that the view taken by the LowerCourts is correct, and we accordingly dismiss this appeal with costs.

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Madan Mohun Saha and Ors.vs. Rajab Ali and Ors.(06.08.1900 - CALHC)