Agarwala, J.

1. The questions referred to us for decision are ;

"1. Do the provisions of Sec.22 (2), Bihar Tenancy Act as amended in 1907 entitle a co-sharer landlord, who has purchased a non-transferable or a transferable occupancy holding between the years 1907 and 1923 to retain it in his possession as his purchased land on a partition taking place between him and his cosharers ?

2. Were the cases of Jhapsi Sao V/s. Bibi Aliman, 5 Pat. 281 : (A.I.R. (13) 1926 Pat 263) and Babu Ram Prasad V/s. Gopal Chand, 2 P. L. T. 163: (A.I.R. (8) 1921 Pat. 341) and Basudeo Narain V/s. Radha Kishan, 3 P. L. T. 22 : (A.I.R. (9) 1922 Pat. 62) correctly decided, assuming that the acquisitions of the occupancy holding were made after 1907 in those cases?

2. This case again raises the much debated question of the rights, on partition, of a cosharer proprietor who has purchased an occupancy holding. So far as purchases made before 1907 are concerned, it was decided by the Full Bench in Sunder Mall V/s. Lachhmi Tewari, 19 Pat. 893 : (A.I.R. (27) 1940 Pat. 467 F. B.) that the purchasing co-sharer is not entitled to retain possession after partition. What has now to be decided is whether he is entitled to retain possession after partition if his purchase is subsequent to the amendment of Sec.22, Tenancy Act in 1907. There have been a number of decisions in this Court, including those mentioned in the reference, in which it has been held that he is entitled to retain possession. There are other cases of this Court in which, although it has not been held directly that be is not entitled to retain possession after partition, it has been held that he is not entitled to retain possession after he has parted with the proprietary interest, that is to Bay, after he has ceased to be a co-sharer in the proprietary interest. It has also been held, however, that he does not, by partition, cease to be a co-proprietor. The logic of this view I find it extremely difficult to follow.

3. So far as the acquisition of an occupancy holding by a sole landlord, or by the entire body of co-sharer landlords, is concerned, Sub-section (1) is quite clear that the tenancy merges in the proprietary interest with the result that it cases to exist as a separate interest. The difficulty has always been with regard to the position when an occupancy holding is purchased by one of several co-sharers. Sub-section (2) attempts to define his position. In order to understand the scope of that section it is as well to bear in mind what the Privy Council baa held to be the position when a raiyati holding is purchased by a co-sharer proprietor. In the Midnapur Zamindary Co. V/s. Naresh Narayan Roy, 51 Cal. 631: (A.I.R. (11) 1924 P. C. 144), their Lordships laid down the following propositions :

"(1) Where lands in India are held in common by co-sharers, each co-sharer is entitled to cultivate in his own interest in a proper and husband-like manner any part of the lands which is not being cultivated by another of his co-sharers, but be is liable to pay to his co-sharer compensation in respect of such exclusive use of the lands ;

2. No co-sharer can, as against this co-sharers, obtain any jote right, a right of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them;

3. Even if the Midnapur Company purchased any jote rights in lands held in common by the co-sharers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote rights so purchased would upon purchase be extinguished."

The suit was for partition of certain lands in which the plaintiffs and the Midnapur Zamindari Company were cosharers proprietors, a declaration that the Company had no jote rights in any of the lands of which partition was Bought, and a decree for possession after partition by ejectment of the Company. The substantial defence of the Company was,