Judgment 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 casement 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 plaintiffs. It was also agreed between the parties that the said Bijoy Gopal Bhattacharjee would be entitled to construct a ‘Ghat’ for the plaintiffs. It was also the said right of easement. But it was made clear in the said petition that Shiri Bijoy Gopal Bhattacharjee would have no other right in respect of the said tank. On 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 title to the said tank in so far as the share of the said co-sharer is concerned. On 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 title to the said tank in so far as the share of the said co-sharer is concerned. As the said Shri Bhattacharjee attempted to exercise his right 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 excise 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 the dwelling house of the plaintiff 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 paned by the Court of appeal below. 2. Mr. Banorjee, the learned Counsel appearing for the defendant-appellant in the instant appeal submitted in the 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 house and Mr. Banerjee also in his usual fairness submitted that aforesaid definition of the Partition Act regarding the dwelling house also it applies to Section 44 of the Transfer of Property Act. Mr. Banerjee also in his usual fairness submitted that aforesaid definition of the Partition Act regarding the dwelling house also it 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 of 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 (1) Jogendra Nath Mondal v. Adhar 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 put 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 (2) Lal Behari Samanta & Ors. 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 (2) Lal Behari Samanta & Ors. v. Gour Hari Dawn reported in 55 C.W.N. page 912, Lahiri J. (as His Lordship them was) held in the said case that Section 44 of the Transfer of Property Act not only takes a way 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, and in Jogindra Nath's case the decision made 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 (3) 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. 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 (3) 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 Mukherjee, J. sitting singly considered both the aforesaid decisions made by Ramaprosad Mookerjee, 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-sharer or co-sharers can maintain a suit for injunction for restraining the stranger transferee from exercising any act of joint possession in respect or the share 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. Benerjee 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 (4) Sujit Kumar Biswas & anr. v. Iswar Chandra Nandy & Ors. reported in 51 C.W.N. 411. For this contention, Mr. Benerjee referred to a Bench decision of this Court made in the case of (4) Sujit Kumar Biswas & anr. v. Iswar Chandra Nandy & Ors. reported in 51 C.W.N. 411. B.K. Mukherjea, 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 possessions he is not liable to be ousted, but no suit for obtaining such possession would lie at his instance. It appears that Mukherjee, J. (as His Lordship then was) referred to a number of decisions of the Bombay High Court reported in (5) 12 Bombay H.C. Reports, page 138, (6) I.L.R. 1 Bombay, page 95 and (7) 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, a suit for eviction of such stranger purchaser by other coparceners would not lie. 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. 4. Mr. Mukherjee, the learned Counsel appearing on behalf of the plaintiff-respondents, however, submitted that the deposition given by the plaintiff No. 3 has been misinterpreted. He referred to the said compromise decree which is an exhibit in the instant suit and as aforesaid it appears from the said compromise decree that the present defendant who was also the defendant in the said suit which ended in compromise accepted the position that the suit tank was undivided joint family property and the said defendant had no manner of title in the said suit tank but the defendant's right of easement of water in respect of the said tank was acknowledged by the parties in the said compromise decree. Mr. Mukherjee contended that to facilitate the said right of easement of the defendant, the said defendant was given the permission to cover up a portion of the disputed plot for the purpose of approaching the suit tank and he was also given the permission to construct a bathing that in the suit tank. Mr. Mr. Mukherjee contended that to facilitate the said right of easement of the defendant, the said defendant was given the permission to cover up a portion of the disputed plot for the purpose of approaching the suit tank and he was also given the permission to construct a bathing that in the suit tank. Mr. Mukherjee submitted that the aforesaid possession was not a possession by any owner and such possession was only an incorporeal possession. Mr. Mukherjee submitted that incorporeal possession is only a possession of a right but not possession of a thing. For this contention, Mr. Mukherjee referred to the celebrated treatise of Salmond on Jurisprudence. He referred to page 58 (12th Edn. Paper Back) where the learned author has discussed the incidence of incorporeal possession. It has been held in the said treatise that "Corporeal" possession involves, as we have seen, the continuing exercise of exclusive control over a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the nonexclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example, a trade-mark, a patent, *****. Incorporeal possession is commonly called the possession of a right and corporeal possession is distinguished from it as the possession of a thing. Mr. Mukherjee submitted that it is quite apparent and evident from the said compromise decree that the defendant had only an easement right for user of water of the suit tank and the possession which the defendant has exercised in terms of the compromise decree is only an incorporeal possession and not the possession of the suit plot. The mere fact that for undisturbed exercise of the said right of easement, the defendant was allowed to cover a portion of the suit plot for his access to the said tank or that the defendant was allowed to construct a bathing ghat for such exercise of easement right the possession exercised by the defendant nonetheless remained an incorporeal possession and accordingly it cannot be contended that the defendant already exercised a peaceful possession and as such the claim of injunction by the plaintiffs was not maintainable in view of the decision made in the said case of (4) Sujit Kumar Biswas v. Iswar Chandra Nandy (Supra). Mr. Mukherjee submitted that it will appear from the facts of the aforesaid decision made in the case of Sujit Kumar Biswas that the stranger purchaser obtained peaceful possession of the undivided property and he exercised such peaceful possession with other co-sharers for quite some time and it was only after exercise of such possession, the stranger purchaser was sought to be restrained by the plaintiffs and their Lordships held in the said decision that in such circumstances a stranger purchaser who was already in peaceful possession of the suit property should not be restrained. Mr. Mukherjee submitted that it will also appear from the said Division Bench decision of this Court made in the case of Sujit Kumar Biswas that Their Lordships relied on the Bombay decisions referred to hereinbefore, and it was held in the said Bench decision of this Court that although Section 44 of the Transfer of Property Act, 1882, does not apply to a sale in execution of a decree, the principle underlying paragraph 2 of the said section is equally applicable to such sales, as recognised in many easel including the aforesaid Bombay decisions. Relying on the Bombay decision made in the case of (8) Balaji v. Ganesh reported in I.L.R. 5 Bom. page 499, the Division Bench of this Court held in the said decision of (4) Sujit Kumar Biswas v. Iswar Chandra Nandy (Supra) that the legislature in inserting paragraph 2 in section 44 of the Transfer of Property Act was embodying a principle of law which was already recognised by the courts of law, and although section 44 does not in terms apply to involuntary sales, it does not follow that the application of the same principle to involuntary sales as a rule of equity, justice and good conscience is excluded. Mr. Mukherjee submitted that the aforesaid Bench decision of this Court, therefore, recognise the equitable principle embodied in Section 44 of the Transfer of Property Act that in the greater interest of peaceful possession of the co-sharers in respect of a dwelling house, a stranger should not be allowed to exercise a joint possession Mr. Mukherjee also submitted that the plaintiff's claim for injunction was negatived in the said decision in the special facts of the said case, namely, because the defendant had already exercised possession of the joint property peacefully for quite some time. Mr. Mukherjee also submitted that the plaintiff's claim for injunction was negatived in the said decision in the special facts of the said case, namely, because the defendant had already exercised possession of the joint property peacefully for quite some time. Mr. Mukherjee submitted that in the instant case the possession exercised by the defendant which was referred to in the deposition of plaintiff No. 3 was only an incorporeal possession and such possession cannot be held to be possession of a thing or in other words possession of the undivided joint family property by the stranger Mr. Mukherjee submitted that in view of the concurrent finding of the courts below that the property in question was a dwelling house within the meaning of Section 44 of the Transfer of Property Act and the defendant did not exercise any other physical possession of a co-sharer in respect of the suit property as contended by the defendant excepting the right of easement no interference is called for in the second appeal and the appeal must fail. 5. Mr. Banerjee, the learned Counsel appearing for the defendant-appellant in reply to the aforesaid contention of Mr. Mukherjee, however, submitted that as the defendant purchased the interest of one of the co-sharers there was no occasion to exercise any right of easement in respect of the said tank and whatever right he had after such purchase been exercised by the defendant was the right of a co-sharer. Mr. Banerjee further submitted that the special facts of the case make it quite clear that the defendant had exercised exclusive possession in respect of a portion of the suit property by walling up and constructing a bathing ghat and as such the plaintiffs' suit must fail. 6. After considering the respective submissions of the learned Counsel appearing for the parties it appears to me that the Division Bench of this Court in the aforesaid decision made in the case of Sujit Kumar Biswas (51 C.W.N. page 411) not only recognised the right of a joint family to restrain a stranger purchaser from exercising joint possession in respect of undivided family dwelling house under Section 44(2) of the Transfer of Property Act but also recognised such right on the recognised principle of equity. Accordingly, I have no hesitation in following the said Division Bench decision and I am inclined to hold that proviso to Section 44(2) of the Transfer of Property Act gives the members of a joint family a right to restrain stranger purchaser from exercising joint possession in an undivided family dwelling house. I am also inclined to accept the contention of Mr. Mukherjee that incorporeal possession by way of right of easement exercised by the defendant cannot be held to be a peaceful corporeal possession of the tank exercised by a co-sharer. The nature of possession so long exercised by the defendant has been an incorporeal possession and it will be improper to treat such incorporeal possession as a peaceful corporeal possession of the tank by a stranger purchaser along with other co-sharers of a joint family so as to defeat the claim of injunction by the members of the joint family under Section 44(2) of the Transfer of Property Act. The appeal, therefore, fails and in dismissed but there will be no order as to cost. By way of abundant caution, it is, however made clear that so long the defendant is not allowed to excise joint possession as a co-sharer by the other co-sharers amicably or so long the defendant is not allotted specific portion of the property, if feasible, by a decree passed in a properly instituted suit for partition, the right of easement to the tank under the said compromise decree will remain unaffected.