C.C. Ghose, J.
1. In these appeals the defendants Nos. 1, 2 and 3 are the appellants before this Court. The plaintiffs in the two suits out of which these sppeals have arisen and the defendant No. 1 are co-sharers in respect of the lands in suit. These lands were formerly in the occupation of certain tenants. The latter abandoned their holdings and repudiated their tenancies. It is alleged that, during the Battlement operations in the District where the lands are situate, the defendant No. 1 got his name recorded as purchaser of the holdings. The Record of Rights was finally published on the 20th October, 1919. The plaintiffs contend that the holdings being non-transferable without the consent of the landlords, the defendant No. 1 acquired no rights whatsoever as against the plaintiffs, and in the events that have happened the plaintiffs are entitled to joint khas possession of the lands in accordance with their shares. The two other defendants are other co-sharer landlords of the holdings in question. On behalf of the defendant No. 1, who is the principal defendant, it was alleged that the holdings in question were homestead lands which had been held by tenants from time immemorial at fixed rents and in enjoyment of permanent transferable rights. It was further alleged that the defendant No. 1 after his purchase of these homestead lands had possessed the same, building pucca structures and making various improvements, and that in the circumstances the plaintiffs were merely entitled to receive rent to the extent of their shares (which the defendant had always been willing to pay) and could not recover joint khas possession of any portion of the lands. The defendant further stated that the plaintiffs were in possession of similar lands acquired from former tenants within the joint taluk without payment of rent to the defendant and that this suit was not maintainable so long as the properties remained unpartitioned.
2. The first Court found that the lands in question were homestead lands and that the principal defendant No. 1 after his purchase had built pucca structures on the lands, constructed walls and raised the level of the lands at the expenditure of considerable sums of money. It was also found that the plaintiffs and the defendant No. 1 had in many instances purchased the holdings of the tenant within their joint taluk and had separately possessed these lands. It was further found that the lands in suit were transferable holdings, that the transfers in favour of the defendant No. 1 were valid and had been recognized by the plaintiffs who were some of the landlords. In the course of his judgment the learned Munsif observed as follows: 'I am convinced that after the purchase of the homesteads in suit by the defendant No. 1, the plaintiffs allowed him to possess them peacefully and make improvements for his residence just as defendant No. 1 allowed the plaintiffs to possess their purchased lands. So long the parties were on good terms there was no difficulty.' The learned Munsif, therefore, dismissed the plaintiffs' suits, holding that the same were not maintainable. On appeal by the plaintiffs, the lower Appellate Court held, reversing the judgment of the first Court, that the holdings in question were not mokarrari, that there had been no recognition on the part of the plaintiffs of the transfers in favour of the defendant No. 1, that there was no evidence of the erection of pucca structures to the knowledge of the plaintiffs and that on the abandonment or the holdings in question by the tenants all the co sharer landlords were entitled to the possession of the lands proportionate to their shares. The lower Appellate Court held that the plaintiffs were entitled to joint khas possession of the lands in proportion to their respective shares.
3. As far as I can make out from the judgment of the lower Appellate Court, the finding of the Munaif as regards the transferability of the holdings in question has not been reversed on appeal. There is no doubt that it has been laid down in this Court in a series of cases that under the law as it stood before the passing of the Transfer of Property Act, tenancies, whether of homestead lands or of agricultural lands, were not transferable in the absence of a custom to the contrary or an express contract to that effect; but there have always been exceptions to this rule and in the case of Benee Madhub Banerjee v. Joy Kishen Mookerjee 12 W.R. 495 : 7 B.L.R. 152. Peacock, C.J. observed that if one man granted a tenure to another for the purpose of living upon the land, that tenure in the absence of the evidence to the contrary was assignable. The same view was also taken in the case of Doorga Pershad v. Sookul Brindaban 15 W.R. 274 : 7 B.L.R. 159. But in this case, as I have said, there is a clear finding that the holdings in question were and are transferable and it is unnecessary to discuss this point further.
4. The next question in whether in the circumstances of this case there has been such an ouster of the plaintiffs as to entitle them to maintain suits of this description and to ask for a decree for joint khas possession. As I read the judgments of the two Courts below no hostile title has ever been set up by the defendant No. 1; his position, as I understand, is this:--In the taluk owned jointly by the plaintiffs and the defendants there are various plots of land which were formerly in the occupation of tenants but which have been abandoned by them; some of these plots have been taken possession of by the plaintiffs; no objection was ever raised to the plaintiffs possessing these lands separately and there ought not, therefore, to be any objection to the defendant No. 1 possessing certain other lands which were abandoned by the original tenants thereof. In these circumstances the defendant No. 1 contends that the mere fact of occupation by him of the holdings in question does not necessarily constitute an ouster of other co-sharers nor does it entitle the latter to a decree for joint khas possession; in other words, the defendant No. 1 contends that his occupation of the holdings in dispute in the circumstances of this case is not inconsistent with joint ownership, The position is according to him somewhat analogous to the case of a tenancy in-common where each tenant is allowed, for purposes of mutual convenience, to remain solely and severally seized of certain plots within the ambit of the joint property and where his co-tenants are not in control or possession of the said plots. I am of opinion that this contention is well founded and ought to be given effect to. This case is on all fours with the case of Basanta Kumari Dasya v. Mohesh Chandra Shaha 21 Ind. Cas. 621 : 18 C.W.N. 328 where it was observed as follows: 'Where a co-sharer is in sole occupation of a portion of the joint property, for instance, by building, or by carrying on cultivation on it, the other co-sharers are to that extent excluded from making any use of that particular portion, as it is difficult to see how two different co sharers can at the same time build upon or carry on cultivation on one and the same piece of land. If, however, the sole occupation of one co owner in this manner constitutes ouster of the other co-owners, then in every case the occupation by the co-owners of the lands in their respective possession would constitute an ouster of each other and this certainly cannot be held. 'Ouster' must, therefore, mean dispossession, of one co-sharer by another where a hostile title is set up by the latter and where the occupation of the latter is not consistent with, joint ownership.' I respectfully agree with what was laid' down in the above case and, in my opinion, on the facts found in this case and specially in view of the fact that the title of the plaintiffs has always been admitted, no valid reason has been assigned or can be assigned for the passing of a decree in favour of the plaintiffs for joint khas possession. In law, such a decree could not in the circumstances of this case have been passed and I would, therefore, set aside the judgment of the lower Appellate Court, restore the judgment of the first Court and allow the appeals with costs both in this Court and in the lower Appellate Court.
5. I agree.