JUDGMENT
Lancelot Sanderson, C.J.
1. In this case the reference to us by the two learned Judges, which is set out at page 4 of the paper-book, is “whether a co-sharer landlord who has purchased a non-transferable occupancy-holding in execution of a decree for his share of the rent is competent to question the validity of the title, of a previous transferee of the holding from the tenant, such transfer not having been recognised by the landlord.”
2. In my judgment, and I think all my learned brothers agree, apparently there has been a misconception of the facts of this case, and when they are correctly appreciated, the point which is involved in this, reference does not arise at all, because it now appears that the plaintiffs Nos. 2 and 3 were tenants in respect of one-half only of an occupancy-holding which was not transferable and the plaintiff No. 1 has purchased their interest. Therefore, the most the plaintiff No. 1 has purchased is the one-half share only, and under those circumstances there are other people, who are holders of the other half share, and who are entitled to be in possession of the property as against the landlord, and, therefore, the landlord had no right to take possession of the property. Consequently the point which has been referred to us does not arise. The course which this Court thinks as the proper one is to remit this case to the District Judge in order that he may deal with the other points which may arise in the case. Sea page 9 of the paper-book where the Munsif who tried the case says: “The other points need no discussion after the above finding.” There are evidently other points which may have to be decided, and the case is remanded for that purpose.
3. The appellant will have the costs of this hearing and of the Division Bench.
Woodroffe, J.
4. I agree.
Asutosh Mookerjee, J.
5. The question referred to the Full Bench for decision has been framed on a misconception of the actual facts of the case. The order of reference assumes that the first plaintiff acquired the entire holding by the two transactions upon which he relies, namely, first, a purchase at a sale in execution of a mortgage decree on the 10th March 1907, and secondly, another purchase under a conveyance on the 14th October 1907. But, on an examination of the pleadings and the proceedings in the suit it is plain that under these transactions the first plaintiff acquired only one-hall: share of the holding, and this accords also with the finding of the District Judge. In this view, the question referred to us does not arise, and the rights of the parties must be governed by the rules formulated by the Full Bench in Dayamoyi v. Ananda Mohan Roy 27 Ind. Das. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52. That decision shows that the plaintiff, as purchaser of a share of an occupancy holding, is entitled to possession even as against the landlord, inasmuch as the tenancy has not yet terminated and interposes a barrier between him and the landlord. Consequently, the plaintiff is entitled to recover possession from the landlord who must be deemed to have wrongfully evicted him from the holding whereof he has purchased a share.
6. I must add, however, that on the materials before us we are not in a position to make a decree for possession in favour of the plaintiff, as there has not been up to the present stage any determination of the question raised in the fifth issue in these terms: “Are the plaintiffs entitled to get khas possession of the lands in suit?” This issue was framed in these circumstances. The allegation of the plaintiff was that his mortgagors and vendors were in exclusive occupation of specific lands described in the plaint as representing the half-share which he subsequently acquired. This was not admitted by the contesting defendant who set up a case of joint possession of all the lands of the holding by the joint tenants. If the allegation of the plaintiff turns out to be true, he will be entitled to a decree for exclusive possession of the land described in the plaint as representing his half share of the entire holding. If, on the other hand, it turns out that the predecessors-in-interest of the first plaintiff were in possession, jointly with their co-sharers, of the lands of the co-tenancy, the plaintiff will be entitled to a decree for joint possession of all the lands to the extent of his half share. These are matters which must obviously be investigated before a decree for possession can be framed in favour of the plaintiff. But it must be clearly understood that in the determination of this question, the Court below must proceed on the basis of the finding accepted by us, namely, that the plaintiff has by his purchases, acquired a good title to a half share and a half share only of the occupancy-holding in dispute.
7. On these grounds I agree that this appeal must be allowed with costs and the case remitted to the District Judge in order that the nutter may be reheard on the lines indicated above.
Herbert Holmwood, J.
8. I agree with the judgments which have been delivered, and I have no objection to the case going back for the purpose of deciding the fifth issue and other questions which the learned Munsif held would arise in the suit, if the plaintiffs established their right to obtain possession as against defendant No. 1. But when the case goes back it ought not, in my opinion, to be open to the District Judge to re-hear the case upon the question of whether plaintiffs Nos. 2 and 3 are tenants in respect of a portion of the holding or of the whole. Provided the remand is limited to the question which has been enunciated in the judgment of Mr. Justice Mookerjee, I am in entire agreement.
D. Chatterjee, J.
9. I agree.
