A cosharer landlord, who was a stranger when making a purchase and later acquired an interest in the Maliki right, is not entitled to an equitable defence of resisting a claim for joint possession based on exclusive possession of other lands.

JUDGMENT

Mukerji, J. - 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 and Others Vs. Aswini Kumar Sinha Roy and Others, AIR 1929 Cal 253 and Durga Sankar Sarma Roy Vs. Kamini Kumar Sarma Roy and Others, AIR 1928 Cal 535 . 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 Ramchandra Saha and Others Vs. Lakshmi Kanta Saha and Others, AIR 1928 Cal 574 , 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 Budhu Koiri Vs. King Emperor, AIR 1925 Cal 538 , which was the case of a purchase by some cosharer landlords of an occupancy holding which was not