Ghose, J.:— This appeal arises out of a suit instituted by the plaintiffs for joint possession with the defendant of some lands. The facts lie within a narrow compass. The lands are said to have comprised an occupancy holding in the possession of a tenant, the landlords being both the plaintiffs and the defendant who are co-owners. The defendant brought a suit for his share of the rent against the tenant in occupation, obtained a decree, and, in execution of that decree, purchased the land himself and entered into possession in August, 1901. The effect of the decree was merely that of a money decree and the defendant purchased only the right, title and interest of the tenant. The present suit was commenced on the 23rd of June, 1917. It is found that the holding was a non-transferable occupancy holding which was purchased by the defendant. It is conceded that the defendant did not acquire any interest under Section 22, sub-section (2) of the Bengal Tenancy Act, so as to entitle him to resist the claim of the plaintiffs to joint possession, if there is no bar of limitation. The Court of first instance gave a decree for joint possession with regard to one plot only in favour of the plaintiffs. On appeal, the Subordinate Judge has reversed that decree and has dismissed the suit entirely on the ground of limitation.
2. It is contended on behalf of the plaintiffs, who are the appellants in this Court, that the decision of the learned Subordinate Judge is erroneous.
3. It is argued that the plaintiffs and the defendant being co-sharers, there could be no limitation running against the plaintiffs by the occupation of the land by the defendant unless there was an actual ouster; and it is contended that because the defendant says that the plaintiffs, are entitled to their share of the rent of the land as proprietors of the mehal, there has been no ouster and hence the suit is not barred by the statute of limitation. The sole question, therefore, is whether under the circumstances of this case the defendant has succeeded in establishing the plea of limitation. There is no doubt that where possession can be referred to lawful title, it cannot be said that it was illegal and that it was adverse to a co-owner. In order to have the statute of limitation run against a co-owner, there must be actual ouster or some act equivalent to ouster. It has to be seen, therefore, whether the taking of possession by the defendant was under a lawful title. The plaintiff and the defendant as co-sharers were no doubt entitled to receive rent from the tenant in occupation of the an according to their shares. No one of the co-sharers had a right to take actual possession of the land. When the defendant purchased the nor transferable occupancy right, such purchase did not confer any title of him, and when he went into possession, such possession was illegal a against his co-sharers. According the authorities of this Court, the plaintiffs were entitled to seek for possession according to their share in the land from the date when the defendant took possession of the property. It cannot he said that when the defendant took possession be virtue of the purchase which hi sets up, he took possession in the exercise of his right as a co-sharer in the mehal and that there was in ouster of the plaintiffs with regard to the right to possession of the land. As a matter of fact, the taking of possession of the land by the defendant gave rise to the plaintiffs' right to joint possession, and so the defendant's possession of the entire land was equivalent to an ouster of the plaintiffs. Limitation, therefore, commenced to run against the plaintiffs as regards the right to possession of the land from the date when the defendant took actual possession. It is urged that because the defendant did not deny the proprietary right of the plaintiffs, there could not have been an ouster of the plaintiffs. Defendant however, does not dispute the plaintiffs' right to receive rent according to their shares. But he claims a tenant's interest by virtue of his purchase of the right of the tenant, and he has been in possession adversely of this limited interest for more than twelve years; and it seems to me that the defendant can acquire such limited interest by adverse possession. It makes no difference that he is a co-sharer of the plaintiffs as landlords. There is no difference in principle, in my opinion, between the present case and the cases of Panchkari Chatterjee…Defendant, v. Maharaj Bahadur Sing…Plaintiff, .(2) as regards the acquisition of a limited interest by the purchaser of a non-transferable occupancy holding.
4. The appeal, therefore, fails and is dismissed with costs.
Walmsley, J.:— I agree.
5. Appeal dismissed.