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Sunder Mall v. Lachhmi Tewari

Patna High Court

May 7, 1940

Judgment

Subsequent
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Opinion Summary — Agarwala, J. (Letters Patent Appeal)

Factual and Procedural Background

The dispute concerns plot No. 196 (7 bighas, 2 khatas in khata No. 60 of tauzi No. 24363). The plot was originally recorded as kasht of Bhikari at a rent of Rs. 6 per annum belonging to tauzi No. 9441. In 1897 Narsingh Tewari (an ancestor of the defendants) purchased the plot from Bhikari and took possession; at that time he was a co-sharer landlord of the tauzi. Later, upon partition of the tauzi, plot 196 was allotted to tauzi No. 24363 (the patti of co-sharer malik Sarjug Singh) and, at partition, the plot was treated as bakasht and valued at Rs. 5 per bigha per annum. Co-sharers were put into possession of their new pattis under Section 94 of the Bengal Estates Partition Act on 14 May 1923.

The plaintiffs purchased Sarjug Singh's patti in June 1924 and alleged they obtained delivery of possession but were dispossessed by the defendants a month later; the courts found that the plaintiffs never obtained actual possession. The suit to recover possession was instituted on 7 March 1935. Defendants resisted on the basis of entitlement under Section 22(2) of the Bihar Tenancy Act. Plaintiffs contended that Section 119 of the Estates Partition Act barred the defendants from contesting that the land was tenancy land (i.e., that contesting would amount to contesting the partition). The courts below and the first Judge in this Court treated the case as if the post-1907 form of S.22(2) applied; the opinion notes, however, that the 1907 amendments do not apply to purchases made before 1907, and Narsingh's 1897 purchase is therefore governed by the pre-amendment text of S.22.

Legal Issues Presented

Whether, under the pre-1907 form of Section 22(2) of the Bihar Tenancy Act, the occupancy right acquired by a co-owner who purchases an occupancy holding is extinguished and, if so, what precisely is extinguished by the provision.
Whether a co-owner who purchased an occupancy right before 1907 is entitled to retain possession of the land after a subsequent partition that allots the land to another co-sharer (i.e., does the purchaser retain a permanent right of occupancy against co-sharers after partition?).
Whether the 1907 amendments to S.22(2) apply to purchases made before 1907 (explicitly addressed and answered in the opinion).
Whether Section 119 of the Estates Partition Act prevents the defendants from raising the tenancy question (the opinion notes the point but states it is unnecessary to decide it in light of the primary issue).

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs claimed they purchased the patti (June 1924) and, through the partition process, should have been in possession of plot 196 (they alleged delivery of possession, though it was found they did not obtain actual possession).
They contended that Section 119 of the Estates Partition Act barred the defendants from asserting that the land was tenancy land in a manner that would amount to contesting the partition allocation.
Implicitly, the plaintiffs relied on the principle that a purchaser who is not a co-proprietor (or a co-proprietor who ceases to be so) cannot retain possession against the proprietor to whom the land is allotted on partition (as argued through cited authorities and decisions of this Court).

Defendants' Arguments

The defendants argued they were entitled to hold possession by reason of the provisions of Section 22(2) of the Bihar Tenancy Act (i.e., that the purchasing co-owner's rights supported their continued possession).
They relied on the notion that the purchase of the occupancy right conferred on the purchaser a status enabling retention of possession (the defendants' contention being the practical effect of the pre- or post-amendment S.22(2) as understood in some earlier decisions).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
24 Cal 143 (Special Bench, Calcutta)	Held that purchase by a co-owner of an occupancy right does not extinguish tenancy rights altogether but only "the occupancy right which is an incident of the holding" — purchaser treated as tenant under co-proprietors.	The Court considered and disagreed with this reasoning as difficult to sustain and queried how an incident (occupancy right) could be transferred apart from the holding; nevertheless, the opinion acknowledged the long-standing acceptance of that view and considered stare decisis before distinguishing the present case on partition facts.
51 Cal 631 (Privy Council)	Dictum that purchase of jote (occupancy) rights in land held in common by co-sharers would be held a purchase for the benefit of all co-sharers and the jote rights so purchased would be extinguished; also held a purchasing co-sharer cannot obtain rights of permanent occupancy against co-sharers and that compensation (not rent) is payable for exclusive use until partition and delivery of possession.	The Court regarded this Privy Council statement as directly conflicting with Beverley J.'s view and used it as authority to reject earlier contrary local precedent (specifically to hold that 7 PLT 170 could no longer be treated as good law) and to support the conclusion that a purchasing co-owner is not entitled to permanent occupancy against co-sharers after partition.
32 Cal 386	Reference to a Full Bench consideration; the Full Bench (mostly) agreed with the earlier Special Bench decision (24 Cal 143), though one judge (Rampini J.) dissented; four reasons were given for disagreeing with the earlier decision; Full Bench nevertheless upheld the earlier view except as noted.	The opinion recounts the Full Bench's treatment and reasons but ultimately chooses not to displace the long-accepted Calcutta view solely on that basis; the Court then addresses the distinct question of partition which the Calcutta cases had not considered.
18 Cal 104 (Privy Council)	Observed that it would be inconsistent with justice, equity and good conscience to allow co-sharers to appropriate fruits of another co-owner's labour or capital when that co-owner cultivates part of the common land; supports compensation (not rent) principle.	The Court relied on this principle of equity to interpret the 1907 amendments and to read "rent" in S.22(2) as prescribing a proportion of compensation for exclusive use rather than creating a tenancy between co-sharers.
7 PLT 170	Decision of this Court holding that the right of a purchasing co-proprietor was not extinguished by a subsequent partition (i.e., purchaser could retain possession).	The learned Judge below felt bound by this decision and dismissed the plaintiffs. The present Court held that the report did not show whether the purchase occurred before or after the 1907 amendment and, in view of the Privy Council decision in 51 Cal 631, concluded 7 PLT 170 can no longer be treated as good law.
2 PLT 163	Similar view to 7 PLT 170 — held purchaser's right not extinguished by partition (report unclear as to timing of purchase relative to 1907).	The opinion records this authority but notes uncertainty as to whether it addressed pre- or post-amendment purchases and treats it as insufficient to overturn the Privy Council authority or the Court's reasoning.
3 PLT 138	Decision noted: Adami J.'s conclusion that rights of the purchasing co-proprietor terminate on partition was reversed on appeal under the Letters Patent; report did not indicate when the purchase occurred and did not reference pre-amendment language.	The Court records the appellate reversal but observes lack of clarity as to timing and statutory text, therefore not treating it as decisive for the present pre-1907 purchase question.
3 PLT 229	Case in which the purchase took place prior to 1907; decision based on the Calcutta Special and Full Bench decisions.	The Court notes this case but treats it as following the earlier Calcutta view rather than as resolving the present partition question under the pre-1907 statute.
1 Pat 600 : 3 PLT 419 (Dawson-Miller C.J.)	Observed that in Collectorate partition between co-proprietors, where lands were bakasht before partition, none of the co-sharers (in absence of special arrangement or statutory right) has the right to dispute possession of lands falling into another's takhta unless some special law (e.g., Bengal Tenancy Act) creates a tenancy interest.	The Court treats this observation as obiter for that case (since S.22 did not apply there) but records its alignment with the principle that statutory tenancy rights (where applicable) are an exception to the general rule that the allottee on partition obtains possession without dispute.
7 PLT 87 (Division Bench)	Held that the status of a co-proprietor purchasing an occupancy right is a peculiar status attaching while he remains a co-sharer; if he ceases to be a co-sharer and proprietary right is lost, he has no right to retain possession of land that passes to the person who acquires the proprietary interest.	The Court cites this authority as supportive of the conclusion that a purchasing co-owner is not entitled to retain possession against a co-sharer to whom the land is allotted on partition (noting that the case facts had differences but that its principle aligns with the present conclusion).
16 Rat 5005 (discussion by Fazl Ali J.)	Referenced in relation to the legislative amendment in Bengal and East Bengal making clear that purchasing co-proprietors are to hold as proprietors and pay fair and equitable sums for use and occupation.	The Court uses the discussion to illustrate that later statutory language (in Bengal/East Bengal) confirms the legislative intent to treat payments as compensation for use and occupation rather than to create tenancy status between co-sharers.

Court's Reasoning and Analysis

The Court proceeded by a close textual and historical analysis of Section 22 of the Tenancy Act in its pre-1907 and post-1907 forms and by examining the relevant authorities that had addressed similar questions. The principal strands of the Court's reasoning were:

Applicability of the 1907 amendment: The Court first determined that the 1907 amendment to S.22(2) does not apply to purchases made before 1907; because Narsingh's purchase occurred in 1897, the pre-amendment form of S.22 governed the rights acquired by him.
Nature of the "occupancy right" pre-1907: The Court analysed the meaning of "occupancy right" in sub-s. (2) as it stood before amendment. It reasoned that tenancy in the case of an occupancy raiyat consists of a bundle of statutory incidents inseparable from occupation. On a plain reading, sub-s. (2) appears to extinguish "the very thing that was transferred" — i.e., the whole incident bundle of the occupancy tenancy — when the occupancy right is purchased by a co-proprietor.
Engagement with the Calcutta decisions: The Court carefully reviewed the Calcutta Special Bench decision in 24 Cal 143 which held that only the "occupancy right which is an incident of the holding" ceases and that the purchaser becomes a tenant under co-proprietors. The Court found that reasoning difficult to sustain (questioning how an incident could be transferred apart from the holding) and identified conflict with Privy Council dicta (51 Cal 631).
Stare decisis and limits of prior authority: While acknowledging that the Calcutta bench view had long prevailed and that stare decisis counsels caution in overturning entrenched titles, the Court distinguished the Calcutta cases on the ground that they had not considered the effect of a subsequent partition after the purchase by one co-proprietor. The Court therefore treated the question of partition as materially distinct and requiring fresh consideration.
Logical difficulties with treating purchaser as tenant of co-sharers: The Court observed that it is conceptually untenable to treat a co-proprietor in possession of part of a common estate as a tenant of the other co-proprietors or as a tenant of himself. The law does not recognize a person as a tenant of himself; this understanding aligns with the explicit language introduced by the 1907 amendment forbidding the purchaser from holding as a tenant.
Equity and compensation interpretation: The Court interpreted the amendment and earlier judicial pronouncements (including Privy Council and 18 Cal 104) as reflecting a legislative and judicial preference to treat the purchasing co-owner's obligation as one to pay compensation for exclusive use, proportionate to co-sharers' shares of rent, rather than to create a permanent tenancy. The Court read the reference to 'rent' in the amended sub-s. (2) as descriptive of the proportion used to compute compensation rather than as establishing a tenancy relationship.
Application to partition: On the specific question whether a co-owner who purchased an occupancy right before 1907 can retain possession after the land is allotted to another co-sharer on partition, the Court found nothing in pre-amendment sub-s. (2) to suggest such entitlement. The Court relied on Privy Council authority (51 Cal 631) that negates a right of permanent occupancy against co-sharers and supports the remedy of compensation until partition and delivery of possession.
Treatment of inconsistent local decisions: The Court noted prior decisions of this Court (e.g., 7 PLT 170) that had held otherwise but found them to be of doubtful application (unclear whether purchases were pre- or post-1907) and, in light of Privy Council authority, concluded such local decisions could not be treated as good law to resist the present claim.
Ancillary points: Because the Court resolved the principal question against the defendants (i.e., that a purchasing co-owner cannot retain possession against the co-sharer to whom the land is allotted on partition), it held that it was unnecessary to decide whether Section 119 of the Estates Partition Act barred the defendants from raising the tenancy issue.

Holding and Implications

Holding: APPEAL ALLOWED. The Court allowed the plaintiffs' appeal, decreed the suit for possession in favour of the plaintiffs and ordered costs throughout.

Implications (direct and as stated in the opinion):

The Court held that a co-proprietor who purchased an occupancy right prior to the 1907 amendment is not entitled to retain permanent possession against a co-sharer to whom the land has been allotted on partition; the proper remedy for co-sharers against exclusive use prior to partition is compensation proportionate to their shares.
The Court stated that earlier local authority (specifically 7 PLT 170) which had been followed by the learned Judge below could no longer be regarded as good law in view of the Privy Council decision in 51 Cal 631; accordingly, the Court declined to treat that prior local decision as binding against the present appeal.
The opinion does not purport to create any broad new statutory principle beyond its interpretation of S.22(2) in light of the cited authorities; its direct effect is to grant the plaintiffs possession and costs in this case and to displace the particular local authority relied upon below.

This summary is drawn exclusively from the language and citations contained in the provided opinion and does not add information beyond that text.

Show all summary ...

Agarwala, J.:— This appeal arises out of a suit to recover possession of plot 196 measuring 7 bighas, 2 khatas in khata No. 60 of tauzi No. 24363. This plot was originally recorded as kasht of Bhikari at a rental of Rs. 6 per annum and appertained to tauzi No. 9441. In 1897 Narsingh Tewari, ancestor of the defendants, purchased it from Bhikari and took possession. At the time Narsingh was a co-sharer landlord of the tauzi. Subsequently, there was a partition of the tauzi and plot 196 was allotted to the new tauzi No. 24363 which was the patti of another co-sharer malik Sarjug Singh. At the partition it was treated as bakasht and valued at Rs. 5 per bigha per annum. The co-sharers were put into possession of their new pattis under Section 94 of the Bengal Estates Partition Act, on 14th May 1923. The plaintiffs purchased Sarjug's patti in June 1924. They alleged that they obtained delivery of possession, but were dispossessed by the defendants a month later. It has been found however that they never obtained actual possession of the plot in dispute. The present suit was instituted on 7th March 1935. The plaintiffs' claim was resisted by the defendants on the ground that they are entitled to hold possession of it by reason of the provisions of Section 22(2) of the Bihar Tenancy Act. Although the land was treated as bakasht in the partition and valued at Rs. 35 per annum instead of at Rs. 6 per annum which was the rent payable by Bhikhari, the plaintiffs contended that Section 119 of the Estates Partition Act, barred the defendants from contending that the land was their tenancy land as this would amount to contesting the partition. In the Courts below and before the Judge of this Court before whom this case was first argued, the matter was dealt with as if the present S. 22(2) applied. It is clear however that the amendments made in Section 22(2) by the Amending Act of 1907 do not apply to a purchase made before that date and therefore do not apply in the present appeal to plot 196 which was purchased by Nar singh in 1897. Before its amendment in 1907, Section 22 of the Tenancy Act, stood as follows:

(1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, the occupancy rights shall cease to exist; but nothing in this sub-section shall prejudically affect the rights of any third person.

(2) If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person.

2. In 1907 the Section was amended and now stands as follows:

(1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, such person shall have no right to hold the land as a tenant, but shall hold it as a proprietor or permanent tenure-holder (as the case may be); tat nothing in this sub-section shall prejudicially affect the rights of any third person.

(2) If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may from time to time be payable to them; and, if such transferee sub-lets the land to a third parson, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.

3. A question arose under the Section before its amendment as to what it was that was acquired by a co-owner who purchased the occupancy right in land and what it was that was extinguished by the Section. Sub-s. (2) speaks only of the transfer of the occupancy right in land and of the extinction of that right. The term occupancy right is not defined, but on a plain reading of the Section what was extinguished was the very thing that was transferred. In the case of an occupancy raiyat, the statute has superimposed on the ordinary right of a tenant to quiet possession certain statutory incidents aimed mainly at protecting him from ejectment and unreasonable enhancement of rent. These statutory incidents are inseparable from the occupation of the land and therefore are not transferable apart from the land. The term ‘occupancy right’ in sub-s. (2) therefore prima facie, includes the whole of that fascicule or bundle of lights and statutory incidents appertaining to the tenancy of an occupancy raiyats and the sub-section, before its amendment, unequivocally enacted their extinction in the case of a purchase by a co-proprietor. What would appear to have been left therefore was the land relieved of all tenancy rights and free from the statutory incidents appertaining to the tenancy of an occupancy raiyat. In 24 Cal 1431 however, a Special Bench of the Calcutta High Court consisting of five Judges held that the effect of the purchase by one of the co-owners of land of an occupancy right is not that the tenancy rights cease to exist altogether but only “the occupancy right which is an incident of the holding.” That case came before the Special Bench on a reference by Petheram C.J, and Rampini J., in an appeal under the Letters Patent from the decision of Beverley J. In the Special Bench a short judgment agreeing with Beverley J. was delivered by Macpherson J., with whose judgment the remaining Judges agreed. Macpherson J. observed:

It is not said, and the sub-section cannot be understood to mean, that the holding shall cease to exist, but that the occupancy right, which is an incident to the holding, will cease to exist.

4. With very great respect to the learned Judge, I am unable to understand how an incident of a tenancy can be transferred apart from the holding which is the subject-matter of the tenancy. Beverley J. in the original appeal, had observed that it was unreasonable to suppose that the Legislature intended that the purchase of an occupancy holding by one co-sharer should enure to the benefit of the other co-sharers who had paid nothing for it. Their Lordships of the Privy Council in 51 Cal 6312 however said:

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 by the purchase be extinguished.

5. This dictum of their Lordships is in direct conflict with the opinion of Beverley J. whose view was the foundation of the decision of the Special Bench. The question again arose in 32 Cal 386.3 This appeal first came before a Bench consisting of Rampini and Mitra JJ. the former of whom had been one of the referring Judges in the earlier case. They referred the matter to a Full Bench, stating that they disagreed with the decision in 24 Cal 143 and gave four reasons for their disagreement with that decision, namely (i) that to hold otherwise is to introduce a new class of tenants, not contemplated by the Act (see S. 4); (ii) that to lay down the principle is to frustrate the object of the introduction into the Act of S. 22, which was to discourage the purchase by landlords of their tenants' rights so as to prevent their encroaching upon the raiyati land of the province and converting it into nij jote land; (iii) the words in S. 22(2) ‘shall cease to exist’ occur also in S. 22(1); and so, if, in the circumstances referred to, the tenancy is not to cease to exist, but to continue divested only of the occupancy right, then under S. 22(1) a landlord may purchase an occupancy right and become his own tenant, which would seem to be opposed to the fundamental principles which underlie the law of landlord and tenant in all countries; and (iv) that if the Legislature had intended to lay down any such rule as has been laid down in the above cited rulings, it would surely have conveyed its meaning not by implication, but by means of clear and unambiguous language.

6. The Full Bench consisted of the Chief Justice and five other Judges, one of whom was Rampini J. With the exception of the latter, the learned Judges were of opinion that the former case had been correctly decided. In 51 Cal 631 the Midnapur Co. had not in fact purchased any occupancy holding, so it may be said that the dictum of their Lordships referred to above was obiter. In any case the view taken by the Special Bench in Calcutta in 1897 has prevailed for so long both in Bengal and in this province that to take a different view now would inevitably result in upsetting a great many titles based on the view that the construction of S. 22(2) then taken was correct. On the principle of stare decisis therefore that view should not now be abandoned. That however does not conclude the matter before us. In neither of the Calcutta cases had there been a partition between the co-maliks after the purchase by one of them of the occupanoy right of a tenant; and the question that falls to be considered now is whether the right which a co-proprietor acquires by his purchase of an occupancy right in land is destroyed by a subsequent partition among the co-maliks. For the purpose of deciding that question it is necessary to enquire into the nature of the right acquired by the purchasing co-proprietor. In 24 Cal 143 the Special Bench held that the status of the purchaser was that of a tenant under the other co-proprietors of the land. That again is a view which in my opinion it is difficult to sustain. If A, B and C are co-proprietors of am estate, I do not understand how one of them who is in possession of a part of the estate can be viewed as a tenant under the other two, for the land belongs to all the three co-proprietors and not merely to the other two. Nor in my opinion can he be viewed as occupying the status of a tenant under himself and his co-proprietors, for that involves the purchaser being a tenant under himself and the other co-proprietors as landlords. The law does not recognize a person as a tenant of himself. The amendments of 1907 have made it quite clear that the Legislature never intended that after “the right of occupancy” had been purchased by a proprietor and extinguished by sub-s. (1) of S. 22, the purchaser should be-regarded as a tenant by substituting for the words “the occupancy right shall cease to exist” in sub-s. (1) the words “such persons shall have no right to hold the land as a tenant.” Precisely the same language was used in the original sub-s. (2) and should not be construed differently.

7. It is true that the amended sub-s. (2) does not as in the case of sub-s. (1), provide that the purchaser “shall have no right to hold the land as a tenant” but, in my view., the amendment of that sub-section should not be construed so as to defeat the object of the Legislature which was to prevent landlords from encroaching upon the raiyat land of the province. The amendment should be construed in the light of the fact that in 1891 the Privy Council had considered the rights of co-sharers inter se when, one of them cultivates a part of the land belonging to all of them in 18 Cal 104 and had observed that it would be inconsistent with the rule of justice, equity and good conscience to allow any of the other co-sharers (the plaintiffs in that suit) to appropriate the fruits of the labour or capital of the defendant co-owner who had cultivated the land. By enacting in 1907 that the purchasing co-owner of an occupancy right shall be entitled “to hold the land” subject to the payment to his co-proprietors “of their shares of the rent which may be from time to time payable to them” the Legislature gave effect to the rule of equity, justice and good conscience referred to by their Lordships and should not be taken to have intended to go any farther than that.

8. This case also decided that where one of the co-sharer proprietors is in cultivating possession of a portion of the estate belonging to himself and the other co-sharers, such possession does not amount to ouster of the latter and therefore they are not entitled to a decree for joint possession with the former but to a decree for a sum of money as compensation in respect of exclusive use and benefit by the defendant of the lands which he cultivates, the amount of compensation being in proportion to the share of the plaintiffs in the land. It will be noticed that their Lordships did not award the plaintiffs' rent which would have been the appropriate remedy, if the defendant was a tenant, but compensation for exclusive use and occupation. The object of the amendment of sub-s. (2) would appear to give effect to this decision in the case of a purchase of an occupancy right by a co-proprietor and at the same time to prescribe the amount of the compensation payable, namely that proportion of the rent which would have been received by the other co-owners from the tenant if there had been no transfer of the occupancy right. The reference to ‘rent’ in the present sub-s. (2), should, in my view, be read in this sense and not as descriptive of the nature of the payment to be made by the purchasing co-owner to his co-sharers. It is pertinent to observe that in amending S. 22(2) in its application to Bengal and East Bengal the Legislature has now made its intention clear by providing expressly that the purchasing co-proprietors or tenure-holder shall hold the land as proprietor or tenure-holder and shall pay a fair and equitable sum for use and occupation: see the discussion by Fazl Ali J. in 16 Rat 5005 at p. 512.

9. In 51 Cal 631 their Lordships again pointed out that where a co-sharer or a co-proprietor cultivates any part of the lands which is not being cultivated by another of his co-sharers, he is liable to pay compensation to them in respect of the exclusive use of the land and if they are not satisfied, their proper remedy is to obtain a partition of the lands. They pointed out that no co-sharer can, as against his co-sharers, obtain any rights of permanent occupancy, in the lands held in common. It will be noticed their Lordships again negatived the idea of any tenancy existing between the parties by the use of the word ‘compensation’ in-stead of ‘rent’ and they denied the possibility of one cosharer obtaining a right of permanent occupancy as against another cosharer. They further held that the period for which the compensation is thus payable is until partition has been effected and possession of the lands falling on partition to the plaintiff has been delivered to the plaintiff.

10. There is nothing in sub-s. (2) to suggest that a co-owner who purchases an occupancy right is entitled to retain possession after the land which he has purchased has been allotted to the patti of any other cosharer by partition. Indeed, the decision in 51 Cal 631 negatives the plaintiffs' right of permanent occupancy by the purchasing co-owner. It has been contended that this view should not be adopted as it would lead to an injustice. It is pointed out that if a cosharer has purchased an occupancy right for a substantial sum of money and is not entitled to retain possession after partition he loses the money which he spent in purchasing the right. It may be presumed that where a co-owner purchases an occupancy right he takes into consideration, in deciding what price to pay for it, (a) the risk that his co-sharers may apply for partition, (b) the compensation payable to his co-sharers until partition and (c) the salami which he may expect to receive if he settles the land with another tenant. It is now necessary to refer to certain decisions of this Court. In 7 PLT 1706 it was held that the right of a purchasing co-proprietor was not extinguished by a subsequent partition. It is not dear from the report of that case whether the purchase by the cosharer was before or after the amendment of 1907 and the decision proceeds on the basis that the present sub-s. (2) of S. 22 confers a privilege on the purchasing cosharer which is in derogation of the common law right of the other co-sharers. No such privilege was conferred on a purchasing co-proprietor by the original sub-s. (2) of S. 22 which merely provided that the right purchased should cease to exist. A similar view was however taken in 2 PLT 163.7 Again it is not clear whether the purchase was before or after 1907. The decision is a single Judge decision and is based on the supposed injustice suffered by the purchasing co-proprietor if his right to possession is lost by subsequent partition. The answer to that view has already been noticed above. In 3 PLT 138 the decision of Adami J. that the rights of the purchasing co-proprietor terminate on partition was reversed on appeal under the Letters Patent. The report does not indicate when the purchase took place and no reference is made to the language of S. 22(2) as it stood before the amendment. The case in 3 PLT 229 was a case in which the purchase took place prior to 1907. The decision is based on the Special and Full Bench decisions of the Calcutta High Court already referred to in which the question now being considered did not arise. In 1 Pat 600 : 3 PLT 41910 Dawson-Miller C.J observed:

In all cases where you have a Collectorate partition between co-proprietors, if the lands were merely the bakasht lands of the landlords before the partition, then in the absence of any special arrangement come to between the landlords themselves at the time of the batwara, none of them has the right to dispute the possession of those into whose takhta the particular lands in question fall. The only exceptions seem to me to be those which are created by law either under the Bengal Tenancy Act, or under some other provision of law whereby a tenancy interest or possibly some other interest in land is acquired.

11. It is probable that the learned Chief Justice by reference to rights created under the Bengal Tenancy Act was referring to the right referred to in S. 22(2). But the case before him was a case to which that Section admittedly did not apply and his observation is therefore merely in the nature of obiter dictum. In 7 PLT 87,11 a Division Bench of this Court held that the status of a co-proprietor purchasing an occupancy right is a peculiar status which attaches to the cosharer so long as he remains a cosharer, and if he ceases to be a cosharer and his proprietary right is lost he has no right to retain possession of land which passes on to the person who acquires the proprietary interest. In that case the proprietary right had been sold. The case therefore is not exactly in point. In my view there is nothing to justify the contention that a purchasing cosharer is entitled to retain possession against another to whom the land has been allotted on partition. In this view of the matter it is unnecessary to decide the further question which was raised by the plaintiffs-appellant that Section 119 of the Estates Partition Act, debars the defendants-respondents from raising the question which we have to decide in this case. The learned Judge from whose decision this appeal under the Letters Patent has been preferred was of opinion that the plaintiffs-appellants were not entitled to succeed, but as he was bound by the decision in 7 PLT 170, he had no alternative but to dismiss the plaintiffs' appeal and suit. As I have already mentioned, the purchase in 7 PLT 170 was not shown to have been made before the amendment of 1907, and in my opinion it can no longer be held to be a good law in view of the decision of the Judicial Committee of the Privy Council in 51 Cal 631. I would allow the plaintiffs' appeal and decree the suit with costs throughout.

Harries, C.J:— I agree.

Manohar Lall, J.:— I agree.

D.S/R.K

12. Appeal allowed.