1. The deft. 2 is the applt. before us, the resps. being the pltf. & deft. l. During the pendency of these proceedings in the lower appellate Ct. the matter appears to have. been compromised between the pltf. & deft. 1 &. that is apparently the reason why the present second appeal is only by deft. 2. The appeal arises, under the following circumstances.
2. Defts. 1 & 2 were the proprietors of a residuary Touzi no. 2463/R of the Cuttack Colleetorate. This residuary Touzi was put up for sale for arrears of revenue & purchased by the pltf. on. 11-9-44. The suit is by the said purchaser for recovery of Khas possession from the defts of certain lands of the extent of 1.90 acres within the; Touzi which have been recorded in the current settlement khatain Ext. 3 as being in the Khas: possession of the father of defts. 1 & 2 Under Section 26 (2) Orissa Tenancy Act. The pltf'a. case is that as a result of his purchase in Ct. auction, he has obtained also the right to the Khas possession of the suit lands. Admittedly, the suit lands constituted at one time a raiyati holding. They have been purchased by the defts'. father & have been since then in the possession of the family. The contention of the pltf. is that Under Section 26 (2), O. T. Act, these, lands were held by the father of the defts. & thereafter by the defts. as mere proprietors & that therefore such interest as they had in it passed on to him on his purchase of their proprietary interest in the revenue sale. This contention has been upheld by both the Courts below & hence this second appeal.
3. The Bench had occasion to consider recently in Nilmoni v. Govinda Chandra, I. L. R. 1950 Cut. p. 526 the effect of such a purchase when it was made prior to the Orissa Tenancy Act of 1913 & when the Bengal Tenancy Act was in force in this Province. We held that the result of such a purchase was the creation of an intermediate status for the purchasing proprietor which was neither that of an occupancy tenant or of a tenant-at-will. It was a tenancy right nevertheless which did not merge with the proprietary right. The, question that arises for consideration in the present case is what would be the legal position when; the purchase of the occupancy holding by the co-sharer proprietor was subsequent to the passing of the Orisaa Tenancy Act of 1913. It may be mentioned that the record in the present ease did not make it clear as to whether the purchase of the occupancy holding by the father of the defts. in this case was before 1913 or thereafter. We therefore adjourned the case on a previous hearing to enable the advocates on both sides to ascertain what the fact was. We have been informed that the purchase in this case was after 1913.
4. The question at issue turns upon the proper construction of Section 26 (2), O. T. Act. The argument for the pltf. is that the defts. were in Khis possession of the land only as proprietors & that when he purchased their proprietary interest at the revenue sale, he obtained also the right to such Khas possession as was comprised within the proprietary right which he has purchased. The argument on behalf of the defts. is that the pltf. by his purchase obtained no more than the right to the defts.,' share in the estate as it originally stood & did not obtain the right to the additional advantage of Khas possession of certain lands which they had purchased, with their own money. They also maintain that Schedule 6 (a) has not the effect of entirely nullifying the purchase of the occupancy right made by them but that it merely imposes a disqualification on their holding the land as a raiyat, which disqualification continues only so long as they are proprietors. They contend therefore that having now ceased to be proprietors, there is nothing in law to prevent their getting the benefit of their original purchase of the occupancy right. They urged, therefore, that they are in the posision of occupancy raiyat of the land after they ceased to be co-sharer-proprietor.
5. No decided case dealing with this specific question has been brought to our notice. We have been told that the question has not come up for direct decision in this form which is rather surprising in view of the fact that the contingency whish bas arisen in this case is not at all an uncommon one.
6. The view taken by the Cts. below relying on Bambhadur Lal v. Mt. Gungra, A. I. R. (12) 1925 Pat. 547; Gopi Singh v. Jagdeo Singh, A. I. R. (14) 1927 Pat. 172 and Suhhdeo Pandey v. Rameshwar Prasad, A. I. R. (23) 1939 Pat. 522, is that the right Under Section 26 (2) of the Orissa Tenancy Act which defts. 1 & 2 had in the suit lands was a right which they had as proprietors of the Touzi & that by the revenue sale they lost the same & that the pltf. as the purchaser got it. The determination of the point at issue involves an answer to two questions (l) What is the nature of the right or interest which co-sharer proprietor has Under Section 26 (2)? (2) Does a purchaser at a revenue sale get, by his purchase that right or interest also?
7. It would be convenient to take the second question first. Under Schedule 6 (2), it is no doubt true that the purchaser-proprietor has the right to hold the land only as a proprietor & not as a raiyat. But the right or interest so acquired by purchase is not a part of the estate itself which he holds in common with other co-proprietors, but is one outside it & is held by an independent source of title. Such a right is not comprised in, nor is it incidental to the co-proprietary interest. The statutory declaration that his right to hold it is as a proprietor is only a limitation of the rights which he would otherwise have had under the purchase enacted on consideration of public policy. There is therefore prima facie no reason to think that the purchaser at a revenue sale will be entitled to get the benefit of this additional right of the defaulting proprietor unless his revenue purchase can be said to be a purchase of the right, title & interest of the defaulting proprietor himself. That a revenue sale has not that effect is well settled by the decisions of the P. C. & of the various H. Cs. In Surja Kanta v. Sarat Chandra, A. I. R. (l) 1914 P. C. 82, it has been laid down that
'On the failure of an owner to pay the Govt. assessment his estate or interest in the land is forfeited or rather determined & under such a Bale what is Bold is not the interest of the defaulting owner, but the interest of the Crown subject to the payment of the Govt. assessment.'
This view has been reiterated by their Lordships in Narayan Das v. Jatindra Nath, A. I. R. (14) 1927 P. 0. 135, In Khemesh Chandra v. Abdul Hamid, A. I. R. (3) 1916 Cal. 184 it is laid down that :
'What passes at a revenue sale is not the right, title & interest of the defaulting proprietor, but the share as recorded in the Collector's book on which the revenue is assessed.'
In Afzul Hussain v. Raj Buno Sahai, 30 Cal. p. 1071, it has been held that the rule of the share of an estate for arrears of revenue under the provisions of Act XI  of 1859 does not affect wholly or in part a valid Mokarari lease of the land comprised in the estate notwithstanding the fact that the lease is held by some of the defaulting proprietors of the share sold, having fractional proprietary interest therein. These authorities are clear & decisive & it is the view so well-settled in these oases that has been adopted by my learned brother Panigrahi J. in I. L. R. (1950) Cut. 526, to which I was also a party. The cases in A. I. R. (12) 1925 Pat. 547 : A. I. R. (14) 1927 Pat. 172 & A. I. R. (26) 1939 Pat. 522 reld. on by the Cts. below do not conflict with this view. It has no doubt been stated broadly in these oases that the interest of a cosharer proprietor Under Section 26 (s), O. T. Act which is some what peculiar & anomalous one ceases when his proprietary interest is lost & that it would pass on to the person who acquires the interest of that cosharer. But an examination of the facts of these three cases would show that the sales with which the Ct. was concerned therein were probably either private sales or sales in Ct. auction of a Civil Ct. decree. At any rate, it is not clear that those decisions were concerned with the rights of the purchaser at a revenue sale. There is an obvious & clear distinction betbeen the right obtained under a private sale. or a Civil Ct. sale & those under a revenue sale. In the former, the purchase is of the right, title & interest of the vendor or of the J. D., but in the latter, as has been pointed out above, the purchaser gets only the defaulter's share in the estate & not the right, title & interest of the defaulter. This distinction has been overlooked by the Cts. below. I am therefore of the opinion; that the pltf. is not entitled on account of his revenue purchase to step into the shoes of defts. l & 2 in respect of the lands held by them Under Section 26 (2), O. T. Act, whatever the nature of their right or interest may be in the lands.
8. This, however, does not conclude the matter. If as has been suggested in some of the cases, the co-sharer proprietor loses his rights Under Section 26 (2) the moment he ceases to be a proprietor, then it may follow that he has no longer any right to hold the land at all k he may, therefore, be in the position of a trespasser liable to be ejected. In reply it has been contended on behalf of the applt. that the effect of Schedule 6 (2) is merely to impose a disqualification which subsists only so long as he is a proprietor & that his right under the original purchase of the occupancy right is revived the moment he ceases to be a proprietor. This requires a consideration of the nature of the interest of the purchasing co-sharer proprietor Under Section 26 (2). That interest is a right to hold the land as a proprietor but not as a raiyat. It is clearly, therefore, not a tenancy right at all. The tenancy right must be taken to have become merged in the proprietary right & that is what has been incidentally pointed out in the judgment of my learned brother Panigrahi J. in I. L. R. 1950 Cut. 526 at p. 530. The merger of the tenancy right on such a purchase is in accordance with the law propounded by the P. C. in Midnapore Zamindari Go. v. Naresh Narayan Roy, A. I. R. (11) 1924 P. C. 144 at p. 146 (2). In spite, however, of the merger, Schedule 6 (2) gives the purchasing proprietor one individual advantage, viz., the right to hold the land as against the other co-proprietors merely paying to them a fair & equitable sum for use and occupation. That is, he gets the sole benefit of the cultivating possession by his purchase & does not share this benefit with the other co-proprietors. To this extent only the Statute law in Schedule 6 (2) appears to have modified the law as laid down in A I. R. (11) 1924 P. C. 144 at p. 146 (2). A consideration of the various legislative changes with reference to the rights of a co-sharer-purchaser who purchases the holding of an occupancy-raiyat is instructive. Sub-section (2) of Schedule 2, Bengal Tenancy Act, as it stood before the amendment in 1907 was as follows :
'If the occupancy right in a land is transferred to a person jointly interested in the land as a proprietor or permanent tenure holder, it shall cease to exist, but nothing in this sub-section shall prejudicially affect the rights of any third person.'
After the 1907 amendment, the same sub-section in the B. T. Act stood as follows :
'If the occupancy right in the land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may be from time to time payable to them, & if such transferee sublets the land to a third person, such third person shall be deemed to be a tenure-holder or a rayat, as the case may be in respect of the land.'
The corresponding present provision in the Orissa Tenancy Act of 1913 which is Section 26 (2) thereof is as follows:
'If the occupancy right in the land is transferred to a person jointly interested in the land, as proprietor or permanent-tenure-holder, such person shall have no right to hold the land as a raiyat, but shall hold it as a proprietor or permanent tenure-holder as the case may be, & shall pay to his co sharers a fair & equitable sum for the use & occupation of the same.'
The position of the co-sharer-proprietor Under Section 26 (2), B. T. Act, both before & after 1907 has been fully dealt with, in the F. B. judgment in Upendra Pratap v. Ishwarwati Koer, A.I.R. (37) 1950 Pat. 115. In the majority view the right of the co-sharer-proprietor is an intermediate tenancy of some sort (see p. 126, col. II). In the view of Narayan J. in the same F. B. as expressed at p. 134, col. 1, this anomalous tenancy right can last only so long as the proprietor continues to possess his proprietary interest, a view for which his Lordship derives support from the decision in A. I. R. (12) 1925 Pat. 547. That is also what is laid down in A. I. R. (14) 1927 Pat. 172 & A. I. R. (26) 1939 Pat. 522. The difference of views reflected in the above F. B. ease in A. I. R. (37) 1950 Pat. 115 turned only on whether the right ceased on partition & allotment of the lands to another sharer. But there was no difference in the view that the right to hold ceases when the proprietary right itself ceases. If that is the correct legal position, as regards the right or the interest of the co-sharer proprietor, with reference to the provisions of Schedule 2 (2), Bengal Tenancy Act, it appears to me that the position of the co-sharer, proprietor is definitely weaker Under Section 26 (2), Orissa Tenancy Act, having regard to the difference in the wording. Under the provisions of the Bengal Tenancy Act, as it stood in 1907, all that is provided, is that the occupancy right ceases to exist. This was held to mean that the holding continued & that the purchasing proprietor has some sort of a tenancy right. This view was recognised by the 1907 amendment by specifically providing that what the co-sharer was to pay was a proportionate share of the rent to other co-proprietor. Therefore, under these provisions, there was definite scope for holding that the purchasing co-proprietor had an interest by way of a tenancy right. But the present provision in the Oriasa Tenancy Act makes it quite clear that the purchasing co-proprietor shall have no right to hold the land as a raiyat. Therefore, any tenancy right in the purchase is ruled out & as has been pointed out above it is merged in the proprietary right. He has the right to hold the land only as a proprietor. The sub-section, therefore, recognises nothing more than his right to hold possession, & gives him the right to keep that possession as against the other co-proprietors, who cannot call upon him to share the benefits of the cultivating possession, but are only entitled to a fair & equitable sum for the use & occupation of the land. It appears to me, therefore, quite clear that under the present provision of Schedule 6 (2), what the co-sharer purchaser has, is only a mere possessory right & not any interest in the land by way of tenancy or otherwise. It may be that this possessory right is heritable & transferable along with the proprietary right; but the question is whether it continues if the proprietary right ceases. In my view, the only reasonable construction of the phrase 'shall hold it as a proprietor' occurring in Schedule 6 (2), Orissa Tenancy Act, is that the possessory right given thereby ceases when the proprietary right ceases. There appears to me to be absolutely no justification for reading into the sub-section a revival of the occupancy right on the cessation of the proprietary right. Schedule 2 (2), Bengal Tenancy Act, as it stood prior to 1907 categorically said that 'the occupancy right shall cease to exist' & not merely that it shall be suspended. It is to my mind the same idea, of extinction & not suspension & something more that is conveyed in Section 26 (2), Orissa Tenancy Act, when it says 'such person shall have no right to hold the land as a raiyat but shall hold it as a proprietor.' It is not possible to read these words with the qualification that the right .to hold as a raiyat would be revived on the cessation of the proprietary right & as implying any limitation on the prohibition confined to the period of the subsistence of the proprietary right. In my view, therefore, defts. 1 & 2 have lost the right to continue in cultivating possession of the suit-lands & would, therefore, in the eye of law be trespassers such continuance,
9. Learned counsel for the applt. (sic) argues that in this view, he, as a co-sharer, though he may not have acquired the right which defts. 1 & 2 had, Under Section 26 (2), would still be entitled to get a decree in ejectment against them. In support of this position, he relies on the cases in Ahmad Sahib v. Magnesite Syndicate Ltd., A. I. R. (2) 1915 Mad. 1214, Maganlal Dulab Das v. Budhar Purshotam, A. I. R. (14) 1927 Bom. 192, CurrimIhoy & Go. Ltd. v. L. A. Greet, A. I. R. (17) 1930 cal. 113 and Sambhu Gosain v. Piyari Mian, A. I. R. (28) 1941 Pat. 351. While no doubt these cases show that one co-sharer can maintain ejectment as against a trespasser, without impleading the other co-sharers, they also show that he can do so only, for the benefit of the entire group of co-sharers. This is made clear in A. 1. R. (14) 1927 Bom. 192 at p. 195, where their Lordships say as follows:
'It may be pointed out, however, though it should hardly be necessary to do so, that the pltf. could get possession in the suit, not only for himself alone, but really for the benefit of the co-owners.'
In such a suit by one co-sharer for ejectment, it would be open to the deft.-trespasser to show that he is in possession with the consent of the other co-owner. If he shows the same, the pltf. co-owner will be entitled to get a decree in ejectment only to the extent of his own share & will be entitled only to joint possession. This was clearly laid down in Hira Lal v. Bhairon, 5 ALL. 602, Badha Proshad v. Esuf, 7 Cal. 414 and Harendra Narain v. Moran, 15 Cal. 40. Such possession, however, to the extent of his own share, he can get only in a properly constituted suit. The pltf. has either to file a suit in ejectment of the defts., from entirety of the suit lands but for the benefit of the whole body of co-sharers, or in the alternative a Suit for ejectment from' his own share & for joint possession along with the defaulter defendants. The suit as filed & as appears from the plaint, is on the footing that the pltf. has acquired the right Under Section 26 (2) to khas possession of the suit lands, by his purchase. It is not a suit for possession either for the benefit of the entire body of co-sharers or one for joint possession with defts. l & 2 to the extent of his own share. It would, therefore, be unfair to the defts. to give a decree in ejectment in favour of the pltf. on a footing different from what the plaint has asked for & on a title & cause of action which is different depriving the defts. of the defence which they may have in a properly constituted suit.
10. In the circumstances, therefore, the pltf's suit has to be dismissed leaving it open to him to obtain ejectment of the defts. from the suit lands either wholly or partially in a separate & properly constituted suit.
11. In the result, therefore, the appeal must be allowed with costs throughout.
12. I agree.