The main legal point established in the judgment is that separate occupation by a cosharer may not necessarily amount to ouster, especially if it is with the consent of other cosharers. The claim for joint possession must be made by the excluded cosharers, and failure to do so may result in the claim for joint possession failing.

JUDGMENT

Page, J. - 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 co