1. This is an appeal by the plaintiffs in a suit for recovery of possession of four plots of land upon establishment of title thereto. The plaintiffs and the contesting defendants, along with many others, were proprietors of Mouza Kalipura. The disputed lands constituted the occupancy holding of a cultivator named Dhanu in that Mouza. On the 15th December 1901 Dhanu mortgaged the holding to the plaintiffs who belong to a family of Roys. The contesting defendants, who belong to a family of Sahas, subsequently acquired the right, title and interest of Dhanu at an execution sale. On the 13th December 1909 the Roys instituted a suit to enforce their security and included the Sahas in the category of defendants as purchasers of the equity of redemption. On the 12th August 1910 the mortgage suit was dismissed by the Court of first instance. On the 26th April 1911 the Subordinate Judge on appeal decreed the suit. The decree was executed in due course, and at the sale which followed, the Roys themselves became the purchasers on the 5th, August 1912. The sale was confirmed on the 18th September 1912 and symbolical possession was delivered to the purchasers on the 16th February 1913. They were unable, however, to obtain actual possession and commenced this litigation on the 25th September 1913 to eject the Sahas.
2. It now appears that, before the institution of the mortgage suit, a suit had been instituted on the nth December 1907 by some of the joint proprietors for partition of their joint properties, including the Mouza Kalipura which comprised the occupancy holding of Dhanu. The final decree in the partition suit was made on the 7th August 1913. Under that decree, the first three plots were allotted to the Saha defendants. Consequently, in answer to the claim set up by the Roys in the present litigation, the Sahas were able to rely upon the decree in the partition suit in their written statement filed on the 2nd January 1914. The Roys thereupon contended that they were entitled to be placed in possession of the disputed lands as tenants under the Sahas. The Trial Court dismissed the suit and this decree was affirmed by the Subordinate Judge on appeal. On second appeal to this Court Fletcher and Huda, JJ., remanded the case for re-consideration. After remand, the Subordinate Judge has dismissed the suit in respect of the first three plots which have been assigned to the Saha defendants by the partition decree, while he has decreed the suit in respect of the fourth plot which is not claimed by the Sahas. On tie present appeal, the plaintiffs have urged that they should have been awarded possession of the first three plots as tenants under the Sahas. We are of opinion that this contention cannot be sustained.
3. The disputed lands ate situated in the District of Tipperah and are consequently subject to the operation of Section 22 of the Bengal Tenancy Act, as amended by the Eastern Bengal and Assam Council Act I of 1908. Sub-section (2) of the section as amended is in these terms:
If the occupancy right ii 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 held it as a proprietor or permanent tenure holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for the use and occupation of the same.
4. We shall assume, for our present purpose, that the occupancy holding of Dhanu was transferable by custom or local usage. It, was treated as such, not only by the plaintiffs Roys when they took it in mortgage, but also by the defendants Sahas when they purchased it at the execution sale. The result of the transfer of the occupancy holding to the Roys at the mortgage sale held on the 5th August 1912 was that, as they were person jointly interested in the land as proprietors, they acquired no right to hold the land as raiyats, but they were to hold it thenceforth as proprietors and incurred a liability to pay to their co-sharers a fair and equitable sum for the use and occupation of the same. Consequently, there was no subsisting tenancy which could be set up by the Roys against the Sahas. The principle which underlies the amended section is by he means difficult to appreciate. The object of the legislature was to negative the decision of the Special Bench in Jawadul Hug v. Ram Das 24 C. 143 : 1 C.W.N. 166 : Ind. Dec. (N.S.) 761 and of the Full Bench in Ram Mohan Pal v. Kachu 32 C. 386 : 9 C.W.N. 249 : 1 C.L.J. 1 (F.B.) which had ruled that, when a co sharer landlord purchases an occupancy holding, the holding does not cease to exist, but only the occupancy right, and the holding continues divested of the right of occupancy which attached to it. The effect of the amended section is, that the occupancy holding disappears, and the purchaser holds the land as a joint proprietor or joint tenure-holder as the case may be. To put the matter briefly, the purchaser enjoys the land in his character of proprietor or tenure-holder and not as a raiyat. But as, upon the disappearance of the tenant right, all the holders of ?the superior interest would prima facts be entitled to possession, that one amongst them who is allowed to keep exclusive possession of the land is made to pay his co-sharers a fair and equitable sum for such use and occupation. The co-sharers who are deprived of the rent they had previously realised from the occupancy raiyat, are in this manner compensated for their loss. This is made plain by the provision in Sub-section (3) which prescribes that in determining from time to time what is a fair and equitable sum, regard shall be had to the rent payable by the occupancy raiyat at the time of the transfer as also to the principles regulating the enhancement or redaction of the rents of occupancy raiyats. It is thus fairly clear that on the 5th August 1912 as soon as the Roys purchased the occupancy holding and title vested in them under Section 65 of the Civil Procedure Code, 1908, the holding ceased to have any existence in their hand. They began to hold the land as part-proprietors, liable to pay to their-co-sharers a fair and equitable sum for use and occupation. The partition should have been effected on this basis in the proceedings then pending, but whether that was done or not, the decree in the partition-suit cannot be, re-opened in this litigation. In any event; it is indisputable that the plaintiffs have no subsisting tenancy right in the lands comprised in what was at one time the occupancy holding of Dhanu. On the date of the commencement of the present litigation, of the 25th September 1913, the only source of their right was the decree in the partition suit. According to that decree, the Saba defendants and not the plaintiffs are entitled to possession.
5. The result is that the decree made by the Subordinate Judge after remand is affirmed-and this appeal dismissed with costs.