C.M. Agarwala, J.

1. 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 pos-session of their new pattis under Section 94, 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.

2. 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), 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, 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 Section 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 Narsingh in 1.897. Before its amendment in 1907, Section 22, 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.

3. 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); but 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 person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.

4. 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-section (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-section (2) therefore prima facie, includes the whole of that fascicule or bundle of rights and statutory incidents appertaining to the tenancy of an occupancy raiyat; 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 there-fore was the land relieved of all tenancy rights and free from the statutory incidents appertaining to the tenancy of an occupancy raiyat.

5. In Jawadul Huq v. Ram Das Saha (1897) 24 Cal 143 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 inci-dent 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 deoision of Beverley J. In the Special Bench a short judgment agreeing with Beverley J. was delivered by Maopherson J., with whose judgment the remaining Judges agreed. Maopherson 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.
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.
6. Their Lordships of the Privy Council in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR (1924) PC 144 however said:

Even if the Mldnapur 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.
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 Ram Mohan Pal v. Sheikh Kachu (1905) 32 Cal 386. 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 14 31 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 Section 4); (ii) that to lay down the principle is to frustrate the object of the introduction into the Act of Section 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 Section 22(2) 'shall cease to exist' occur also, in Section 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 Section 22(l) 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.

7. 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 6312 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 Section 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.

8. In neither of the Calcutta cases had there been a partition between the co-maliks after the purchase by one of them of the occupancy 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 1431 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.

9. If A, B and C are co-proprietors of an 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 arid 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-section (1) of Section 22, the purchaser should be regarded as a tenant by substituting for the words "the occupancy right shall cease to exist"' in Sub-section (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-section (2) and should not be construed differently.

10. It is true that the amended Sub-section (2) does not as in the Case of Sub-section (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 raiyati 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 Watson & Co. v. Ramchund Dutt (1891) 18 Cal 10 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.

11. 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 further than that.

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.

12. 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-section (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-section (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 cosharers. It is pertinent to observe that in amending Section 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 Mies G.B. Solano v. Umeshwari Kuer.

13. In Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR (1924) PC 144 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' instead of 'rent' and they denied the possibility of one co-sharer obtaining a right of permanent occupancy as against another co-sharer. 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.

14. There is nothing in Sub-section (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 co-sharer by partition. Indeed, the decision in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR (1924) PC 144 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 co-sharer 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 cosharers may apply for partition, (b) the compensation payable to his cosharers until partition and (c) the salami which he may expect to receive if he settles the land with another tenant.

15. It is now necessary to refer to certain decisions of this Court. In Jhapsi Sao v. Mt. Bibi Aliman it was held that the right of a purchasing co-proprietor was not extinguished by a subsequent partition. It is not clear from the report of that Case whether the purchase by the co-sharer was before or after the amendment of 1907 and the decision proceeds on the basis that the present Sub-section (2) of Section 22 confers a privilege on the purchasing co-sharer 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-section (2) of Section 22 which merely provided that the right purchased should cease to exist. A similar view was however taken in Babu Ram Prasad v. Gopal Chand.

16. 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 Nandklshore Singh v. Mathura Sahu AIR (1922) Pat 193 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 Section 22(2) as it stood before the amendment. The case in Basudeo Narain v. Radha Kisan was a case in which the purchase took place prior to 1907.

17. 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 Qyamuddin Khan v. Ramyad Singh AIR (1922) Pat 354 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 fell. 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.
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 Section 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 mature of obiter dictum. In Lala Bambhadur Lal v. Mt. Gungra Kuer, 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 co-sharer so long as he (remains a co-sharer, and if he ceases to be a co-sharer 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.

18. 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 co-sharer 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, Estates Partition Act, debars the defendants-respondents from raising the question which we have to decide in this case.

19. 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 Jhapsi Sao v. Mt. Bibi Aliman, he had no alternative but to dismiss the plaintiffs' appeal and suit. As I have already mentioned, the purchase in Jhapsi Sao v. Mt. Bibi Aliman 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 Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR (1924) PC 144. I would allow the plaintiffs' appeal and decree the suit with costs throughout.

Arther Trevor Harries, C.J.

20. I agree.

Manohar Lall, J.

21. I agree.