1. This case stands free from those considerations which might perhaps arise in a case where a cosharer landlord purchases a non-transferable occupancy holding held jointly under him and his cosharers and then seeks to resist the claim of his cosharers on the ground that they too are in exclusive possession of a portion or portions of other joint properties. In this case the defendants who were complete strangers purchased a non-transferable occupancy holding from the previous tenant and thereafter, though within a short time of the purchase, acquired a small share in the superior interest, thus becoming a cosharer landlord. The other landlords then instituted the present suit to recover joint possession with the defendants to the extent of their share. The suit has been resisted on the ground that the said cosharers themselves are in exclusive possession of other joint lands.
2. That a cosharer landlord making a purchase of a non-transferable occupancy holding would ordinarily be liable to eviction is a proposition that cannot be denied, because the other cosharers are entitled to treat the holding as abandoned and abandonment would ordinarily justify a claim for khas possession. Dayamoyee v. Ananda Mohan Roy AIR 1915 Cal 242. In Dilbar v. Hossein Ali (1899) 26 Cal 553 a two third cosharer of a taluk had, without the consent of his cosharers, forcibly turned out the common tenants of a non-transferable occupancy holding and possessed himself of the lands of the holding to the exclusion of his cosharers and then relied upon the equitable considerations noticed in Robert Watson & Co. v. Ramchand (1891) 18 Cal 10 and Luchmeswar Singh v. Manowar Hussein (1892) 19 Cal 253 and this Court held that in the circumstances of the case no such considerations arose. In Girish Chandra v. Kedar Chandra (1900) 27 Cal 473 a cosharer landlord had purchased a non-transferable occupancy holding in execution of a money decree against the tenant, and the cosharers of such purchaser were allowed a decree for joint possession with him, it being held that he had no right to retain possession of the holding to the exclusion of his cosharers. In circumstances similar to those in the last mentioned case similar decrees were passed in Lakhikant v. Balabhadra AIR 1915 Cal 120, Kanchan Mondal v. Kamala Prasad (1915) 29 IC 734, Dwarkanath Roy v. Mathuranath Roy (1917) 34 IC 833. In all these cases the reasons for the decision were that the cosharer landlords by the purchases they made acquired no interest as against their cosharers and there was abandonment which entitled the latter to re-enter. A similar view has been taken in Golbar Bibi v. Aswini Kumar : AIR1929Cal253 and Durgasunker Roy v. Kamin Kumar Sarma : AIR1928Cal535 . In none of these cases was any plea raised that by reason of the fact that the plaintiffs themselves had been in sole occupation of certain lands, the defendants as cosharers could resist a claim for joint possession.
3. The case of Basanta Kumari v. Mahesh AIR 1914 Cal 283, where such a defence was taken and given effect to, the question whether the holding which had been purchased by the cosharer landlords was a transferable one or not was not gone into and the case was fought out on the footing of the rights of one set of cosharers who themselves were in sole possession of certain Khamar lands in a Mehal to restrain another set who had made purchase from erecting structures on the lands so purchased. In Ram Chandra v. Lahshmi Kanta : AIR1928Cal574 , Basanta Kumari v. Mohesh AIR 1914 Cal 283 was applied to a case in which the finding of the lower appellate Court was read as meaning that the holding was transferable. This equitable defence however was not upheld in the case of Jagabandhu v, Rajmohan Pal : AIR1925Cal538 , which was the case of a purchase by some cosharer landlords of an occupancy holding which was not transferable. Notwithstanding the case last mentioned, were this case one of a purchase made by a cosharer landlord who has sought to resist the claim for joint possession on the ground that the plaintiffs themselves are in sole occupation of other lands to their exclusion, I should have hesitated to rule out their defence but should have been prepared to consider the matter further.
4. But the special fact in the present case, namely, that the defendants were strangers when they made the purchase and then came to acquire an interest in the Maliki right is, in my opinion a fact which deprives them of an equitable defence of this character which is open only to a cosharer. In Nabadwip Chandra v. Bhagwan Chandra : AIR1927Cal462 the facts were that one of the defendants, namely, defendant 4 in that suit had purchased a non-transferable occupancy holding and four years after such purchase sold it to a person, viz., defendant 1 who just a month before the sale became a cosharer by purchase of a share in the Maliki interest. In that case to resist the suit of the other cosharer for joint possession it was contended that the equitable principle referred to in Basanta Kumari v. Mohesh AIR 1914 Cal 283 was not applicable because whereas in the last mentioned case the parties were cosharers from before the purchase, in the case then before the Court defendant 4 had made the purchase first, then defendant 1 acquired a Maliki interest and then purchased the holding from defendant 4. In that case it was said:
This distinction that exists between the facts of the two cases is not one which may be said to be at all material and in any event it is proper that on a question as to whether the equitable principle laid down in Basanta Kumari v. Mohesh AIR 1914 Cal 283 should be applied or not, one has got to see the state of facts as they existed at the time when the suit was instituted.
5. These observations as far as I can gather were made in view of the facts of that particular case. In the first place the very fact that reliance was placed on Basanta Kumari v. Mohesh AIR 1914 Cal 283 would seem to suggest that there was no particular finding on the question of transferability of the holding. Nextly, it would appear from the judgment of this Court that the character of the holding did not play any part in the decision. Thirdly, it would also seem that defendant 4 was himself a cosharer, when he made the purchase because the appellant's argument was that the purchase made by defendant 4 on 5th Magh 1324 was a purchase on behalf of all the co-sharers. And fourthly, the said purchase was condoned or acquiesced in for a period of 4 years before any suit was instituted. What was said in that case therefore cannot be taken as implying that where a purchase is made by a stranger who subsequently becomes a cosharer landlord, his claim to remain in possession is not to be judged on a different footing. On the other hand I think the position becomes completely different in such circumstances. For then it can bo said, as was said in the case of Bhairabendra Narain Ray v. Rajendra Narayan Roy AIR 1924 Cal 15 (at p. 489 of 50 Cal.):
It cannot bo said that when the defendant took possession by virtue of the purchase which he set up he took possession in the exercise of his right as a cosharer of the Mahal and that there was no ouster of the plaintiff with regard to the possession of the land.
6. It is quite clear that when the defendants in the present case took possession of the land they came in as trespassers with no right which could avail against the plaintiffs. The plaintiffs had at that time the right to evict them, and no acquiescence on their part having bean established, they are entitled to joint possession to the extent of the share they own. The appeal must be dismissed with costs.