Ganendra Narayan Ray, J. - (1.) This appeal arises out of the judgment and decree passed by the learned Subordinate Judge, 10th, Court, Alipore, in Title Appeal No. 124 of 1964 affirming the judgment and decree passed by the learned Munsif, 2nd Court, Diamond Harbour, in Title Suit No. 103 of 1962. The defendant No. 1 is the appellant in the instant appeal and the said Title Suit No. 103 of 1962 was instituted by the plaintiff-respondents No. 1 to 3 for an order of injunction restraining the defendant No. 1 from interfering with their possession in respect of a tank alleged to be a portion of the homestead and/or the dwelling house of the plaintiffs and their co-sharers. It appears that previously there was a Title Suit between the predecessor-in-interest of the present plaintiffs and the present defendant being Title Suit No. 521 of 1945 in the court of the learned Munsif at Diamond Harbour. The said suit ended in compromise between the parties and the disputed tank was adjudged as the joint family property of the plaintiff and his co-sharers. It was held, that the defendant in the said suit Shri Bijoy Gopal Bhattacharjee who is also the defendant in the present suit, had no manner of title in respect of the said tank but by the compromise decree the easement right of the said defendant Bijoy Gopal Bhattacharjee in respect of the disputed tank was recognised and it was agreed between the parties that the said Bijoy Gopal Bhattacharjee would be entitled to exercise the easement right of water in respect of the said tank and for the said purpose he would be entitled to enclosed a portion of the land belonging to the plaintiff. It was alto agreed between the parties that the said bijoy Gopal Bhattacharjee would be entitled to construct a Ghat' for the purpose of exercising the said right of easement. But it was made clear in the said compromise petition that Shri Bijoy Gopal Bnattachaijee would have no other right in respect of the said tank. Oil the basis of the said compromise petition between the parties the said Title Suit No. 521 of 1945 was decreed, It appears that long thereafter the defendant Bijoy Gopal Bhattacharjee purchased the share of one of the co-sharers and, accordingly, obtained tale to the said tank in so far as she share of the said co-sharer is concerned. As the said Sun Bhattacharjee attempted to exercise his light to possess the suit tank as co-sharer, the present plaintiffs instituted the instant suit for restraining the said defendant from exercising any act of possession in respect of the suit on a co-sharer tank as the footing that the suit tank being a part of the homestead of the plaintiffs and their co-sharers, the defendant Bijoy Gopal Bhattacharjee should not be allowed to exercise the right of possession as a co-sharer in respect of the said undivided tank being part of the dwelling house. It appears that the Courts below came to the finding that the suit tank comprised the homestead or the dwelling house of the plaintiffs and their co-sharers and, accordingly, the Trial Court decreed the suit and on appeal made by the defendant Bijoy Gopal Bhattacharjee, the Appeal Court dismissed the appeal and affirmed the judgment and decree passed by the Court of appeal below.
(2.) Mr. Banerjee, the learned Counsel appearing for the defendant-appellant in the instant appeal submitted in his usual fairness that under the Partition Act, 1893 a dwelling house also includes not merely the structure and/or the residential building but also adjacent building, the cartilage, courtyard, garden, orchard, tank and all that is necessary for convenient user of the dwelling home and Mr. Banerjee also in his usual fairness submitted that aforesaid definition of the Partition Act regarding the dwelling house also applies to Section 44 of the Transfer of Property Act. Mr. Banerjee the learned Counsel appearing for the appellant, however, contended that although the Courts below came to the finding that the suit tank formed part of the undivided dwelling house the plaintiffs and their co-sharers since owned and possessed by them exclusively the said finding was made overlooking the fact that the plaintiff No. 3 himself deposed in the instant suit that the water edge of the suit was 7 or 8 cubits from the back door of the defendants' house and the plaintiffs wanted to cover 7 or 8 cubit feet by a wall for protecting the privacy of the plaintiffs but the said space had been covered by a wall by the defendant and the said space appertained to the suit plot. Referring to the said deposition of the plaintiff no. 3, Mr. Banerjee contended that it is now quite evident that the defendant although stranger to the family was in possession of a portion of the said plot and in such circumstances, the injunction as claimed by the plaintiff under the proviso to section 44 of the Transfer of Property Act is no longer available to the plaintiffs. In this context, Mr. Banerjee referred to the decision of this Court made in the case of Jogendra Nath Mondal v. Adfiar reported in A.I.R. 1951 Calcutta, page 412. Ramaprasad Mookerjee J. held in the said case that provisions of paragraph 2 of Section 44 of the Transfer of Property Act are of a negative nature. On proof of a sufficient defence, the Court will not forcibly pul a stranger in joint possession with the members of the joint family. It was held that the provisions of Section 44 of the Transfer of Property Act do not create any positive right in favour of the members of the family. Mr. Banerjee also referred to another single Bench decision of this Court made in the case of Lal Behari Samanta & Ors. v. Gour Hari Dawn reported in 55 C.W.N. page 912, Lahiri J. (as His Lordship then was) held in the said case that Section 44 of the Transfer of Property Act not only takes away the right of the transferee to ask for joint possession but also at the same time creates a right of the other co-sharers of the dwelling house who are affected by the sale to the strangers, to sue for an injunction restraining the later from exercising any act of joint possession along with the plaintiffs and their co-sharers in respect of the joint family residence. The effect of injunction is not to keep the defendant out of possession altogether and the defendant has certain title to the undivided share purchased by him and he can possess it by adopting only remedy for instituting a suit for partition unless he is preempted under section 4 of the Partition Act. It appears that decision in Lal Behari Samanta's case was given by Lahiri, J. (as His Lordship then was) on the 29th of June, 1950 and the other decision made in the case of Jogendra Nath was given by Ramaprasad Mookerjee, J. Shortly thereafter on August 11, 1950, but in Jogendra Nath's case the decision mude in Lal Behari Samanta's case was not cited presumably because the Court's attention was not drawn to this earlier decision. It, however, appears that both the said two case were taken into consideration in a subsequent decision of this Court made in the case of Paresh Nath Biswas v. Kamal Kumar Chowdhury reported in 61 C W N. at page 776. The aforesaid decision was also made by a single Bench of this Court. Renupada Muknerjee, J. sitting singly considered both the aforesaid decisions made by Ramaprosad Mukerjee, J. and Lahiri, J. (as His Lordship then was) and Renupada Mukherjee, J. held that upon a transfer to a stranger of an undivided share of a family dwelling house by a co-sharer of it, the other co-harer or co-sharers can maintain a suit for injunction for restraining the stranger transferee from exercising any act of joint possession in respect of the state transferred. Although Renupada Mukherjee, J. agree with the view given by Lahiri, J. (as His Lordship then was) he gave different reasons and it was held by Renupada Mukherjees J. that the second part of section 44 of the Transfer of Property Act does not really create any new right in favour of any co-owner of a family-dwelling house but by application it recognises a right which already inheres in him.
(3.) Mr. Benerjee referring to the aforesaid decision submitted that different views had been taken by the single Judges of this Court in the said decisions and while one view was that the provisions of the proviso to section 44 (2) are of a negative nature, the other view is that there is a positive right of a co-sharer in the family dwelling house against a stranger purchaser. Mr. Banerjee further submitted that in the instant case, it may not be necessary to decide as to whether it is a positive right or just a negative right in view of the fact that admittedly plaintiff No. 3 had admitted in his deposition that the defendant is already in possession of a part of the disputed tank and as the said stranger co-sharer is in peaceful possession of a portion of the alleged family dwelling house, there is no occasion to ask for any injunction against such stranger purchaser. For this contention, Mr. Benerjee referred to a Bench decision of this Court made in the case of Sujit Kumar Biswas and anr. v. Iswar Chandra Nandy & Ors. reported in 51 C.W.N. 411. B.K. Mukherjee, J as his Lordship then was) held in the said case that where a stranger purchaser at an execution sale of a share of a family dwelling house has peacefully obtained joint possession he is not liable to be ousted, but no suit for obtaining such possession would he at his instance. It appears that Mukherjee, J. (as His Lordship then was) referred to s number of decisions of the Bombay High Court reported in Mahabalaya v. Timay, 12 Bombay H C. Reports, page 138, Babaji Lakshman v. Vasudev, I.L.R 1 Bombay, page 95 and Kallapa Bin v. Venkateshvinayak, I.L.R. 2 Bombay, page 676 and agreed with the view of the Bombay High Court that where the stranger purchaser had obtained joint peaceful possession, s suit for eviction of such stranger purchaser by other coparcener's would not he. Mr. Banerjee, therefore, submitted that in view of the admitted position that the defendant was already in possession of some portion of the suit property peacefully, the instant suit was not maintainable and the courts below failed to take note of this salient feature of this case and accordingly erred in decreeing the suit.;