1. This is an appeal from a decree of the learned Subordinate Judge of Sylhet, affirming a decree of the learned Munsif of Habiganj. The suit was brought by one cosharer in order to obtain joint possession of what was admitted to be joint property from another cosharer, upon the ground that the defendant cosharer bad excluded and ousted the, plaintiff from his right to joint possession of the land in dispute. It appears that the plaintiff and the contesting defendant were two of three cosharers entitled as, tenants-in-common, to certain ejmali land. On a portion of the joint property there was a person in occupation who was possessed of a nontransferable occupancy title, and the, tenant used to pay rent to the three co-sharers. The contesting defendant, now the appellant, purchased the tenure, and after the purchase the tenant abandoned his holding. Thereupon, the appellant went into possession of the land, and has been cultivating it in khas possession. The purchase of the holding by the appellant, and the abandonment by the tenant took place in 1911, and the presnt suit was brought in 1921. Notwitstanding the labours of the learned advocate for the respondent no evidence has been brought to our attention of any claim by the plaintiff to joint possession of this land during those ten years. Nevertheless, the learned Judges in the lower Courts have held as a matter of fact that the plaintiff respondent was excluded and ousted by the appellant 'from joint possession of this plot of land. The learned Subordinate Judge passed the following observations in the course of his judgment:
The appellant purchased the tenants' holdings which were abandoned by the original tenants. So defendant 2 virtually expelled the common tenant, and possessed himself to the exclusion of the plaintiffs. Therefore the plaintiffs were ousted from the lands in suits by act of defendant 2.
2. Now, to hold that a cosharer is in possession of part of the common land to the exclusion of the other cosharers, in my opinion, is much the same thing in the eye of the law as saying that he has ousted his cosharers, for to exclude is to 'keep out', to oust 'to put out' of possession. But to find that a co-tenant is in sole occupation of part of the joint land may or may not, according to the facts of the particular case, be the same thing as to say that he is in exclusive occupation of the property or has ousted his cosharers from the property. If the Court were to hold that evidence of separate occupation was necessarily proof of ouster it seems to me that the difficulties which are great enough as matters now are attendant upon the joint occupation of joint property would become insuperable. For whenever a cosharer 13 found to be in sole occupation of part of the common land he will be deemed to have ousted there from his cosharers. In my opinion, according to well-settled law, if lone cosharer separately occupies a portion of the common land without objection from his cosharers, and with their express or implied consent, he is not to be subjected to a suit in which the plaintiffs claim joint possession of the plot of which the defendant is in sole occupation. If the separate occupation of the defendant is with the tacit or express assent of his cosharers, and the cosharers are dissatisfied with the manner in which the joint land is being held in possession by the tenants-in-common, their proper remedy is to bring a suit for partition. On the other hand, if the separate occupation of a cosharer is continued after objection from any of his cosharers and in defiance of their claim to be in joint possession of the land, then the cosharers who are excluded and ousted from joint possession are entitled to bring a suit to obtain joint possession of the ejmali property : see the case of Basanta Kumari Dassya v. Mohesh Chandra Shaha  18 C.W.N. 328. Whether there is exclusion or ouster depends upon the circumstances prevailing in the particular case under consideration. Now, in the present case, the appellant has been in sole occupation of the property in dispute. The question, therefore, is one of fact : Was that separate occupation such that it amounted to an exclusion or ouster of the respondents or not
3. The learned Subordinate Judge has held that the separate occupation of the appellant amounted to ouster because, as I understand his judgment, by reason of the separate occupation by the appellant the respondents have been deprived of their share of the profits of the land. The question at once arises: Have the respondents asked for joint possession? The answer is that they have not The learned advocate for the respondents have been unable to point to any claim by the plaintiffs either to joint possession, or to a share in the profit of the land in suit, or to any objection to the occupation by the appellant of the land in suit throughout the ten years which elapsed after the appellant went into possession of the land. In my opinion, in such circumstances, there is no room for a finding that the appellant excluded the respondents from joint possession of the property; and the mere fact that the appellant is found to be in sole occupation of the land is not to be regarded as proof that he has either excluded or ousted the respondents from joint possession thereof. The ground, therefore, upon which the lower Courts have based the finding of ouster cannot stand. The learned advocate on behalf of the respondents, however, has urged that, if this finding cannot stand, the proceedings should be remanded in order that there should be a finding upon the issue whether or not having regard to the evidence on the record there was a claim or objection by the respondents, or an assertion of an adverse or exclusive title by the appellant to this parcel of land which would amount to an exclusion or ouster at law. I should have thought that a remand would have been the right course if the learned advocate for the respondents had been in a position to point to any evidence upon the record which, if believed, would justify a finding upon that issue in their favour. Notwithstanding his researches and those of his junior, however, not a shred or tittle of evidence has b9en brought to our attention which would support the plaintiffs' ease on such an issue. In the circumstances, in my opinion, we should not be justified in reminding this case for further consideration. In my opinion, inasmuch as the plaintiffs-respondents have failed to prove exclusion or ouster from the plot of land of which the defendant-appellant has been for this long period in sole occupation, their claim in the suit to be given joint possession fails.
4. The appeal, therefore, will be allowed the decrees of the lower Courts set aside and the suit will be dismissed with costs in all the Courts.
5. This judgment will also govern the other two analogous appeals.
6. Though there is a clear finding in the judgment of the Court of appeal below in regard to ouster I agree that in the proper sense of the word no ouster has been proved in this case, nor does it appear that there are any materials whatever on the record to justify the finding of the learned Subordinate Judge on the point. I agree with my learned brother that the appeals succeed and must be allowed.