1. The subject matter of the litigation which has given rise to this appeal is a small parcel of land owned originally by three brothers Aukhil, Nagen and Rajani. Rajani is dead and his interest has passed by inheritance to his mother Subarna. Aukhil transferred the property to the father of the defendants-respondents on the assumption that the property belonged exclusively to him and he was competent to deal with it as his own. At that time his brothers Nagen and Rajani were infants. Upon attainment of majority Nagendra and his mother Subarna have brought this suit for declaration of title to two-thirds share of the land and for recovery of possession thereof. The defendants have sought to resist the claim substantially on the ground that Aukhil was the person exclusively entitled to the property and that the plaintiffs have no title to enforce against them. That defence has completely failed and it has been established that Aukhil was interested to the extent of a third share only. On these facts, the Court of first; instance made a decree in favour of the plaintiffs for recovery of possession and mesne profits. Upon appeal, the Subordinate Judge has held that the plaintiffs are entitled merely to a declaration of title and cannot claim to eject the defendants. In our opinion this view cannot be supported.
2. The learned Vakil for the respondents has explained that the decision of the Subordinate Judge is based on the doctrine that one co-owner is not liable to be ejected from joint property at the instance of his co-sharer unless there has been an ouster in the technical sense of the term. Dijendra Narain v. Purnendu Narain 11 C.L.J. 189 : 5 Ind. Cas. 171. But even if this principle if assumed to have been applied in this case, it is obviously of no assistance to the defendants. As already stated, Aukhil dealt with the property as if it belonged exclusively to himself. The moment he alienated the whole of the property to the father of the defendants there was an assertion of the hostile title on his part, and that assertion has continued up to the time of the institution of the present suit inasmuch as the transferees have claimed the entire property in denial of the rights of the two brothers of Aukhil. Consequently, they or their representatives-in interest are entitled to be restored to possession of their share of the property. The Subordinate Judge also seems to have held that the defendants as purchasers from Aukhil might be entitled to claim the whole of this property if upon a partition it fell entirely in the share of Aukhil. No doubt, such a claim on the part of the defendants as against Aukhil might be sustained on the principle recognised in Section 43 of the Transfer of Property Act. As between them and their vendor, the latter might not be in a position to deny that he had a good title to the whole of the property. But that contingency has not yet happened and the defendants cannot anticipate events which may never happen. At any rate, even upon partition, it is conceivable that the whole of this property may not be allotted to them alone. Under these circumstances, we are of opinion that the defendants cannot resist a decree for possession of the immoveable property.
3. The result is, that this appeal is allowed, the decree of the Court below set aside and that of the Court of first instance restored. This order will carry costs both here and in the Court below.