JUDGMENT Iqbal Ahmad, J.
1. The dispute in the suit out of which the present appeal arises was with respect to the site of two houses that belonged to a tenant named Beni. We are concerned in the present appeal with the site of only one of the houses. Beni sold the house in dispute to certain persons in the year 1932 and the vendees in their turn sold the house to Darshan Singh, defendant, appellant. It is common ground that both Prag Singh, plaintiff-respondent, and Darshan Singh, defendant-appellant, are co-sharers in the site in which the house in dispute is situated. The suit was brought by the plaintiff-respondent for joint possession of the site after the removal of the materials thereon. Beni had died before the institution of the suit. The suit was contested on various grounds by Darshan Singh but most of those grounds were rightly overruled by both the Courts below and need not therefore be stated in this judgment. One of the pleas raised in defence by Darshan Singh, which found favour with the trial Court, was that no special damage was caused to the plaintiff in consequence of the purchase of the house by Darshan Singh, and as such the plaintiff was not entitled to the relief prayed for by him. This plea formed the subject of issue 7 framed by the trial Court which ran as follows: "Whether the plaintiff suffered a loss? If not, how does it affect the suit?" The trial Court held that no loss was suffered by the plaintiff and the suit was not maintainable. In this connexion the trial Court made specific reference to the fact that by the sale-deed the site of the house in dispute was not transferred and continued to belong to the zamindars. On appeal by the plaintiff the lower Appellate Court held that though there was no evidence of special damage to the plaintiff the plaintiff as a cosharer in the village was entitled to a decree for joint possession of the site and accordingly reversed the decree of the trial Court and decreed the plaintiff's suit. In my judgment the decree of the lower Appellate Court is perfectly correct. At the very outset I must make it clear that in the present litigation we are concerned with a village in which no custom entitling a raiyat to transfer his house along with the right of residence exists.
2. It cannot be disputed that all the coparceners in a joint patti or mahal are joint owners of the site of the houses of tenants and raiyats situated in that patti or mahal. If the tenants or raiyat dies without leaving any heir or abandons the house the right to the joint possession of the site and the materials vests in all the cosharers and in such a case one cosharer has no right to take possession of the materials or of the site to the exclusion of the other cosharers. It is also clear that a tenant or a raiyat has the right to transfer the materials of the house to any person he likes provided the materials belong to him and there is no custom prohibiting such a transfer. The question then arises whether a sale of his house by a tenant or raiyat to one of the cosharers, entitles that cosharer to retain possession of the house along with the site to the exclusion of the other cosharers. In my judgment the answer to the question must be in the negative. The tenant or raiyat has a disposing power only so far as the materials of the house are concerned and has not a transferable interest in the site of the house. The transfer made by him can therefore be operative only so far as the materials of the house are concerned and cannot adversely effect such right as the entire body of coparceners have in the site.
3. I am unaware of any principle of law that may justify the inference that the fact that transfer is in favour of one of the cosharers has the effect of depriving the other cosharers of the right to the joint possession of the site. If the cosharer who purchases the house enters into possession of the same his possession constitutes an infringement of the right of the other cosharers to the joint possession of the site. The other cosharers therefore have the right to ask the purchasing cosharer to remove the materials of the house and thus enable those cosharers to take joint possession of the site of the house. In short the retention of possession by one of the cosharers of the house of a tenant or raiyat that has been purchased by him furnishes the other cosharers with a cause of action for a suit for joint possession of the site by removal of the materials. The question of special damage does not arise and the cause of action in such cases is constituted by the invasion of the right of the cosharers to joint enjoyment of the site of the house. No case directly bearing on the point before me has been cited by either party, but the view that I take receives support from the decision of a Division Bench of this Court in Shankar Lal v. Pati Ram (1937) 24 AIR All 293. For the reasons given above I hold that the rights of the case were with the plaintiff and not with the defendant-appellant and that the suit was rightly decreed by the lower Appellate Court. Accordingly I dismiss this appeal with costs. (N. B-Leave to appeal under the Letters Patent is granted.)