Renupada Mukherjee, J.
1. The facts involved in this appeal are no longer in dispute and the decision of the appeal turns on a pure question of law.
2. The respondents brought a suit for restraining the appellant from entering into possession of some plots of land described in the schedule of the plaint on the allegation that those plots comprise a dwelling house and its appurtenant land belonging to the respondents and their co-sharers, and the appellant who has taken a permanent lease of a fractional share of the plots and who is a stranger to the family has no right to enter into joint possession of the property.
3. The trial court decreed the suit in part granting a permanent injunction in respect of all the disputed plots excepting two which were held to be not appertaining to the dwelling house. This decree was confirmed in appeal. So the defendant has preferred this second appeal.
4. The only point urged in this appeal by Mr. Ghosh on behalf of the appellant is that such a suit is not maintainable in law. Put in the form of a legal proposition the question can be formulated as follows :--
Whether upon a transfer to a stranger of an undivided share of a family dwelling house by a co-sharer of it, the other co-sharer or co-sharers can maintain a suit for injunction for restraining the stranger transferee from exercising any act of joint possession in respect of the share transferred.
5. On this point there appear to be two conflicting decisions of this court one of which is reported in Lal Behari Samanta v. Gaurhari Dawn : AIR1952Cal253 (A), and the other in Jogendra Nath Mondal v. Adhar Chandra Mondal : AIR1951Cal412 (B). In the former case Lahiri J. held that such a suit is maintainable and in the latter case Mookerjee J. took an exactly opposite view. In the latter case the suit was brought by only one co-sharer of the dwelling house without impleading the other co-shaver, but the decision in the case does not vest on that ground, -- the real ground for the decision being that the provisions of Section 44 of the Transfer of Property Act are of a negative nature and do not create a positive right in favour of the members of the family.
6. Lahiri J. took an exactly opposite view holding that Section 44 of the Transfer of Property Act creates such a right in favour of other owners of the dwelling house, who are affected by the transfer in favour of a stranger. Both the decisions are decisions by a single Judge and they were given near about the same time, the decision of Lahiri J. being dated 29th June, 1950 and the other being dated 11th August, 1950. No reference is made in either decision about the other. The question before me is which of the above two conflicting decisions should be followed as being correct.
7. Section 44 of the Transfer of Property Act runs in the following terms :
'Where one of two or more co-owners of immoveable property legally competent in that behalf, transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
8. The two learned Judges have differed in their interpretation of Section 44, Lahiri J. holding thatthe second part of the section creates a right in the co-owners of a family-dwelling house affected by the transfer of an undivided share of it by one co-sharer in favour of a stranger. Mookerjee J., has held that no such right is created. Upon his interpretation of the section Lahiri J., held that a suit for injunction at the instance of the affected co-owners is maintainable and Mookerjee J., held that it is not.
9. On a careful perusal of the above two cases I am inclined to agree with the view taken by Lahiri J., as to the maintainability of such a suit although on a ground somewhat different from that given by the learned Judge. In my opinion, the second part of Section 44 does not really create any new right in favour of any co-owner of a family-dwelling house but by implication it recognises a right which already inheres in him. A co-sharer owner of a property is entitled to exercise his possession over every portion of the property. Normally such exercise of possession is limited to the extent of his share. When, however, there are several co-sharers of a property and one of them refrains from exercising his possession by giving up his connection with the property or by leaving the country or for any other reason, the remaining co-sharers, though not full owners of the property, can certainly resist a trespasser or stranger from taking possession of the share of that co-sharer by bringing a suit for injunction against him. The stranger purchaser of a fractional share of an undivided family-dwelling house is reduced to the position of a stranger, so far as possession is concerned, on account of the disability imposed upon him by the second part of Section 44 of the Transfer of Property Act. The remaining co-sharers can, therefore, injunct him from entering into possession of the dwelling house, just as they can injunct a trespasser in the illustration given by me, the only difference in the case of a stranger purchaser of a share of a family-dwelling house, being that he can sue for partition on the strength of his title. In this view of the matter, I am clearly of opinion that a suit for injunction of the present description is maintainable in law and the contrary view taken by Mookerjee J., it must be said with respect, is not correct.
10. Mr. Ghosh submitted in this connection that in any event his client has got a right to separate possession by partition and the courts below were wrong in granting a permanent injunction restraining his client from entering into possession of the disputed property. It goes without saying that the injunction order will remain operative until the defendant appellant thinks it advisable to bring a suit for partition and until he gets a decree in that suit.
11. The only contention raised on behalf of the appellant having failed this appeal is dismissed with costs to the respondents.
12. Leave to file an appeal under Clause 15 ofthe Letters Patent is asked for and refused.