Judgment :- 1. These two appeals are directed against the judgments and decrees of this Court in S. A. 482 of 1960 and S.A. 939 of 1960 (1965 KLT. 473) after obtaining leave. 2. To appreciate the points raised before us it is necessary to state some facts. The appeals arise out of O. S.122 of 1957 on the file of the Munsiff's Court, Cochin for arrears of rent in respect of a building site and in the alternative for compensation for use and occupation. The site belonged to the Hindu joint family of the plaintiffs. The first plaintiff's wife Leelavathi constructed the building thereon and she was in possession of the same until it was purchased in execution of a decree by Purushothama Shetty, who it is admitted got delivery of the same. Moorthi Rao, father of the defendant, purchased in 1931 the building from Purushothama Shetty. 3. Moorthi Rao in execution of the decree in O.S. 21 of 1927 also purchased the undivided interest of the first plaintiff in the joint family properties including the plaint site and he got symbolical delivery of the same. Thereafter he filed O.S. 18 of 1934 for partition and recovery of the 1st plaintiff's share in the joint family properties impleading all the coparceners of the joint family. Exs-B-3 and B-7 dated 1-4-1935 are the preliminary judgement and the preliminary decree It is admitted that after the passing of the preliminary decree there has been no progress in O. S.18 of 1934 and the application for the passing of the final decree is still pending. 4. Plaintiffs 1 to 8 instituted the suit in 1958 for recovery of rent alleging that the site was leased by the first plaintiff to Moorthi Rao in 1940. The trial court as well as the first appellate court concurrently found against the lease. The trial court also overruled the claim of the plaintiffs for damages for use and occupation on the ground that such a relief is not possible as the defendant is a co-sharer of the plaint site with plaintiffs. The suit was therefore dismissed. 5. But the learned Subordinate Judge in appeal found that the defendant is liable for compensation for use and occupation at the rate of Rs. The suit was therefore dismissed. 5. But the learned Subordinate Judge in appeal found that the defendant is liable for compensation for use and occupation at the rate of Rs. 40/- per annum and deducting the proportionate amount payable on the 1/24th share in the site belonging to the first plaintiff which had passed on to the defendant by virtue of the partition decree and court purchase decreed the suit for the balance. The plaintiffs as well as the defendant filed second appeals against the decision of the Subordinate Judge. The learned single judge agreeing with the trial court dismissed the suit. The appeals are directed against the decision of the single judge. 6. The learned judge has found that the effect of Ex. B7 is to constitute the defendant a co-tenant with plaintiffs 2 to 8 in respect of the plaint site. Though there was a faint challenge against the finding we do not find any reason to differ from the conclusion of the learned judge. 7. The learned judge has also accepted the concurrent finding that the lease set up by the plaintiffs is not true. The said finding was not question before us. 8. The result therefore is that the defendant is in possession of the plaint site belonging to him and plaintiffs 2 to 8 as tenants in common. The question is whether in such circumstances the defendant is liable for use and, occupation in respect of the interest of plaintiffs 2 to 8 in the plaint site. We agree with the conclusion of the learned single judge on this point. In order that a defendant may be made liable for use and occupation of a property the property should belong to another person and the occupation should be with his permission. In Woodfall on Landlord and Tenant, Twenty-sixth edition, volume 1 page 604, the learned author says: "He who holds another's premises with his permission, but without an express bargain as to the rent, agrees to pay what a jury may find the occupation to be worth. This is a principle resulting from the nature of an action for "use and occupation!" 9. This is a principle resulting from the nature of an action for "use and occupation!" 9. In the same book at page 490, Para.1194, which has been relied on by the learned single judge it was observed: "To entitle a man to this compensation there must have been some tenancy, express or implied; between the plaintiff and the defendant during the period in respect whereof the compensation is claimed, and it is not enough that the plaintiff was really entitled to the property. For example, where the defendant occupied as tenant to another person, from whom be obtained the possession, or as a mere wrong-doer or willful trespasser, no such action would be maintained-" 10. We have therefore to hold that there cannot be any basis for the claim for use and occupation on the part of the plaintiffs against the defendant after the date of Ex. B-7. A co-tenant who is in possession of a part of the joint property is not liable for compensation for use and occupation. If his possession amounts to ouster the remedy of the other co-tenants is only to file a suit for partition and recovery of his share in the property. On the other band, if his occupation or possession is not sufficient to constitute ouster even then his possession is in his own right as a co-tenant of the property though it may be a possession on behalf of the others as well in which case also there cannot be a suit for damages for use and occupation. In Freeman on Co-tenancy and Partition in Para.286 it is stated: 'Each co-tenant is entitled to be in possession, and to use every part of the common property, so long as he does not exclude his co-tenant. In Freeman on Co-tenancy and Partition in Para.286 it is stated: 'Each co-tenant is entitled to be in possession, and to use every part of the common property, so long as he does not exclude his co-tenant. Therefore it is not reasonable to presume that a co-tenant, who has, without denying the rights of his companion, been in the full and exclusive possession, and in so being has been in the enjoyment of nothing beyond his legal rights, has entered into any engagement, express or implied, to account for the prof its of such possession." and in Para.274 at page 361 it is observed: "There are obviously many cases in which a tenant in common may occupy and enjoy the land or other subject of tenancy in common solely, and have all the advantages to bo derived from it, and yet it would be most unjust to make him pay anything. For instance; if a dwelling house, or born, or room, is solely occupied by one tenant in common; without ousting the other, or a chattel is used by one co-tenant in common, nothing is received; and it would be most inequitable to hold that he thereby, by the simple act of occupation or use, without any agreement, should be liable to pay a rent or anything in the nature of compensation to his co-tenants for that occupation or use to which, to the full extent to which he enjoyed it, he had a perfect right. It appears impossible to hold that such a case would be within the statute; and an opinion to that effect was expressed by Lord Coltenham in McMdhon v. Burchell. Such cases are clearly out of the operation of the statute." 11. Being a co-tenant, therefore the defendant cannot be held liable for compensation for use and occupation. Learned counsel for the plaintiffs appellants relied on the decisions in Shanker Lal v. Poti Ram (AIR. 1937 All 293) and Jamilunnissa v. Sheikh Mohammad Zia (AIR. 1937 All. 547). In our view, they cannot have any application to the facts before us for the reason that the question considered was whether it is open to a co-tenant to construct a permanent structure in the co-ownership property to the exclusion of the other co-tenants and whether the latter can restrain the said act by the former. 1937 All. 547). In our view, they cannot have any application to the facts before us for the reason that the question considered was whether it is open to a co-tenant to construct a permanent structure in the co-ownership property to the exclusion of the other co-tenants and whether the latter can restrain the said act by the former. We are therefore satisfied that there is no merit in these appeals, and we dismiss the same. We make no order as to costs.