JUDGMENT This appeal is directed against an appellate decree passed by the District Judge of Howrah reversing the judgment of the trial court. The sole question raised in the Courts below was if a person claiming to be a co-sharer in some immovable property is evitable as a licensee when he fails to prove his alleged share in the said property. The facts of the case out of which the appeal arose in the lower appellate court may be briefly stated as follows: 2. The plaintiff-appellant Becharam Das filed a suit in the trial court for eviction of the defendants-respondents from the suit property i.e. two rooms of premises Do. 13/14 Joy Narayan Babu Anauda Dutta Lane alleging that they were illegally possessing those rooms after entering the same on the basis of permission given in a previous suit. Previously a partition suit was filed by the plaintiff's uncle one Jogendra' Nath Das claiming one fifth share in the aforesaid premises. The basis of his claim was that the premises in question each belonged to his father Brajonath Das who died leaving five sons inheriting one fifth share. The plaintiff's mother and his other uncles were defendants in the said partition suit. The said suit was dismissed on' contest as it was held that the plaintiff's mother Abodh Bala was the sole owner of the premises she having acquired it with her Stridhan. An appeal before the first appellate Court was also fruitless. In the said partition suit Jogendra Nath Das having died was substituted by One Nilima Das. The said Nilima Das gave an undertaking to the karaed Court for permission to effect repairs of the two disputed rooms of the present Suit promising that she would not claim any right, title or possession in respect of the property on the basis of such permission. It bas been alleged that the defendant no. 1 who is the husband of Nilima kept some electrical goods in the disputed rooms taking advantage of the permission given by the court. As the rooms were not vacated even after the disposal of the suit and the appeal the plaintiff-appellant in the present suit gave a notice to Puma Ch. Das for vacating the suit rooms but he refused to vacate the same. Hence a suit was filed in the trial court for his eviction. As the rooms were not vacated even after the disposal of the suit and the appeal the plaintiff-appellant in the present suit gave a notice to Puma Ch. Das for vacating the suit rooms but he refused to vacate the same. Hence a suit was filed in the trial court for his eviction. The trial court decreed the suit, but on appeal the District Judge reversed the judgment and dismissed the suit. 3. Mr. Santimoy Panda on behalf of the appellant attacks the first appellate court's judgment on 'two -grounds. His first ground of attack is that the learned District Judge committed an error of law by holding that the suit was not maintainable in the absence of ail the heirs of Abodh Bala, His second ground of attack is that the first appellant court’s view that the suit should fail as the plaintiff failed to prove the defendants’ possession of the suit rooms as licencee was erroneous. 4. As regards the first point, the first appellate court’s view is that on Abodh Bala’s death her son, daughter and the heirs of her predeceased son inherited her property and that the non-joinder of the daughter and the heirs of the predeceased son was fatal to the suit. It appears from the deposition of P.W.1 Becharam Das that his elder brother Ram Mohan predeceased his mother leaving his widow, three sons and three daughters and that his (Beaharam's) sister Gouri Rani is still living. But the District Judge has stated in his judgment that the plaintiff's mother Abodh Bala died leaving two sons and a daughter. There is evidently some mistake in this statement. In the circumstances the widow of Abodh Bala's predeceased son did not inherit her property. Actually her son, daughter and the children of her predeceased son became her heirs on her death. Evidently the other heirs excepting the plaintiff were not substituted after Abodh Bala's death. 5. Mr. Tapan Kumar Dutta on behalf of the respondents argues that a co-sharer cannot be entitled to get possession of an immovable property by evicting a trespasser and that he can at best get joint possession in the property. He quotes 40 CWN 81 (Joy Gopal Sinha & ors. v. Prabodh Ch. Bhattacharjee & ors.) in support of his argument. In the said case the plaintiffs were ousted' from a property by the defendants. He quotes 40 CWN 81 (Joy Gopal Sinha & ors. v. Prabodh Ch. Bhattacharjee & ors.) in support of his argument. In the said case the plaintiffs were ousted' from a property by the defendants. The trial court found that the plaintiff had title to the property to the extent of 12 annas share and that the defendants were trespassers: The court, therefore gave a decree for possession of that share. On appeal the appellate court found that the plaintiffs had title to the extent' of 4 annasand that consequently they were not entitled to get a decree for more than one fourth share. On a second appeal the High Court held that the plaintiffs were not competent to eject the trespassers but that they were entitled to joint possession. The High Court further opined that the plaintiff had to work out his rights by means of suit for partition. 6. Mr. Santimoy Panda on the other hand submits that the eviction of a trespasser enures to the benefit of all co-sharers and that as such anyone or more co-sharer can get possession of the property by evicting a trespasser. It is necessary to examine which version should be accepted. 7. In 40 CWN 81 a reasoning has been given. It has been observed (at p. 82) as follows :- "If two persons are joint owners and a third person holds the land with the express sanction and acquiescence of one of the co-sharers, he cannot be ejected from the whole of the land by the other co-sharer. The latter can get a joint possession to the extent of his share" The above reasoning holds good for the non-maintainability of an ejectment suit against a tenant by some of the co-sharers only. 8. In 'Corrimbhoy & Co. Ltd. v. L. A. Creel & ors. (AIR 1930 Cal. 113) it was held that one of several co-owners can maintain an action against a trespasser without joining the other co-owners as parties to the action. Case laws were discussed in this regard. The following observations made in Magan Lal v. Bhudhan (AIR 1927 Bombay 192) were quoted with approval by C. C. Ghosh J. delivering the judgment. 113) it was held that one of several co-owners can maintain an action against a trespasser without joining the other co-owners as parties to the action. Case laws were discussed in this regard. The following observations made in Magan Lal v. Bhudhan (AIR 1927 Bombay 192) were quoted with approval by C. C. Ghosh J. delivering the judgment. "The reason of the rule which requires one fresh and common volition of co-owners to put an end to that which commenced under their common volition, does not apply to a case where the person concerned requires a fresh common volition to continue in possession, The case of a person who is a tenant on sufferance is akin to the case of a 'trespasser. It has been held in the case of Sutari v. Magnesite Syndicate Ltd. (29 IC 69,) that one co-owner can maintain an action to eject a trespasser who has been holding over / wrongfully." 9. In 40 C WN 81 Corrimbhoy's case has been referred to but it has been held that the practice of the court has been to give joint possession with a trespasser. The reasoning quoted above has not been discussed and as such the decision in 40 C WN 81 cannot be held to be applicable to all cases and particularly in the context of extinguishable facts. 10. In AIR 1953 All 331 (Mt. Ram Kali v. Pahilwan Singh) it was held that one joint owner out of several can always eject a trespasser and obtain a decree for possession against the trespasser. In this case two co-owners jointly owned a land as life estate holders. One of them made a statement that she did not want any decree in her favour. The trial court decreed the suit into to, but the lower appellate court granted a decree in respect of only half share on account of the disclaimer of one of the co-sharers. The High Court revised the finding and had (hat one joint owner was entitled to a decree for possession of the whole in the circumstances. 11. In AIR 1955 Andhra 351 Venkata Reddy & ors. v. Kolandarareddigari (Sankara Reddi) it was held that a co-owner can file1a suit for recovery of the property from a trespasser on behalf of all the co-owners. 12. - In AIR 1941 Patna 351, (Sambhu Gosain & Anr. 11. In AIR 1955 Andhra 351 Venkata Reddy & ors. v. Kolandarareddigari (Sankara Reddi) it was held that a co-owner can file1a suit for recovery of the property from a trespasser on behalf of all the co-owners. 12. - In AIR 1941 Patna 351, (Sambhu Gosain & Anr. v. Piyari Mian) also it was held that one of the several co-owners was entitled to maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action. 13. The ratio decidendi in the above cases is that a co-owner can maintain an action for ejectment against a trespasser without impleading the others (a) if all the co-owners have common interest, and (b) if the co-owners concerned acts on behalf of the others. Thus if some of the co-owners tend to support the trespasser or if common volition of all the co-owners is necessary for an action against the trespasser a decree for joint possession should be given. In this case the defendants respondents have already been found in a previous suit to have no title to the property. They have also not' claimed adverse possession. Hence a decree for joint possession with them is meaningless. In the circumstances, I hold that the suit cannot fail for non-joinder of parties and the lower appellate court's finding in this regard is erroneous. 14. As regards the second point, it is urged by Mr. Panda that the District Judge's view that the defendants could not be deemed to be licencees although their claim of title to the disputed rooms was rejected by two successive courts in the previous partition Suit, is erroneous. The trial court held that the plaintiff's mother's title to the suit property having been proved the possession of the defendants should be deemed to be a permissive one. The District Judge has differed from this view. According to him if a person is in possession and his claim of title is rejected, it does not necessarily follow that his possession is permissive in nature. The question is which should be the correct view? 15. A licence is that permission to stay, on a property, either express or implied but for which his stay on the property would be illegal. A validly permitted possession of an immovable property may turn to be a trespass if the possession continues even after the withdrawal of the permission. The question is which should be the correct view? 15. A licence is that permission to stay, on a property, either express or implied but for which his stay on the property would be illegal. A validly permitted possession of an immovable property may turn to be a trespass if the possession continues even after the withdrawal of the permission. It is different in nature from the possession of a rank trespasser who forcibly occupies a property knowing that he has no right, title and interest in the property. If a person enters upon a property on a bona fide belief that he has title to the property but ultimately it is found that he has no such title, his stay on the property subsequent to such a finding must be deemed to be a trespass. The question is how such a trespasser may be ousted ? 16. In AIR 1966 SC 735 (Bhagawati Prasad v.Chandramaul) the plaintiff Cltandramaul sued the defendant Bhagawati Prasad claiming that the latter was a tenant under him. The defendant admitted the title of the plaintiff but claimed to remain in possession of the disputed house on the basis of an alleged agreement that he was to remain in possession until the amount spent by him for its construction was returned to him. Neither the plaintiff's claim of tenancy nor the defendant's claim to stay on the basis of the alleged agreement was proved. The court however, passed a decree for ejectmeut against the defendant. It was held by the Supreme Court that the relationship between the parties would be either that of a landlord and tenant or that of an owner of property and a person put into possession of it by the owner's licence. No other alternative was logically or legitimately possible. 17. In AIR 1977 Patna 161 (Mahabir Ram v. sm. Sita Devi) the plaintiff respondent filed a suit for eviction against the defendant tenant claiming title on the basis of a registered sale deed executed by the father of the defendant. The defendant contested the suit claiming that he was the owner of the house. The courts below held that the plaintiff had proved his title on the basis of his deed but failed to prove the relationship of landlord and tenant between the parties and that the defendant was in permissible possession of the property. The defendant contested the suit claiming that he was the owner of the house. The courts below held that the plaintiff had proved his title on the basis of his deed but failed to prove the relationship of landlord and tenant between the parties and that the defendant was in permissible possession of the property. On the basis of these findings the courts held that the plaintiff was entitled to equitable relief for ejectment under Or.7 r.7 C.P.C, The High Court held that the courts below were justified in granting the equitable relief of ejectment and the plaintiff should not be driven to file another suit for ejectment. 18. In an Allahabad case (AIR 1976 Allahabad 155 Rama Sanker v. Bidhey Khan & Anr.) in a suit for ejectment arrears of rent and mesne profits the plaintiff's title to the land was disputed. It was found that the plaintiff bad title to the suit land and a decree for possession was granted on such a finding notwithstanding the plaintiff's failure to prove the contract of tenancy, when there was no prejudice to any party. 19. All the above cases show that once the plaintiff's title is proved, he has a claim over the property to the exclusion of an unsuccessful claimant of the same. He has a preferential claim to possess his own properly notwithstanding the relationship attributed to the person interested to opposite his title. This is called the equitable relief of ejectment. The first appellate court has not upheld the defendant's claim of title. Neither he, it ought to show any reason why the plaintiff should be deprived of his right to possess his own property after his title was upheld in the previous partition suit. He insisted on an unwarranted technicality that actual giving of permission to the defendant to possess the suit property should be proved. From the previous partition suit it is found that the said suit was filed by Jogendra Nath Das and on his death Nilima was substituted on the basis of a deed of settlement. Even if the plaintiff appellant's claim that Nilima came upon the suit property on the basis of an undertaking given before the court is left out, what is her or her husband's basis of possession? She was the substituted plaintiff in the partition suit claiming her right as a co-sharer. Even if the plaintiff appellant's claim that Nilima came upon the suit property on the basis of an undertaking given before the court is left out, what is her or her husband's basis of possession? She was the substituted plaintiff in the partition suit claiming her right as a co-sharer. Obviously she did not claim any right by adverse possession. Her claim of title having been negatived by the court she cannot also claim any right by adverse possession at this stage. What is her status then? She is not a co-owner. She has also not acquired any interest in the property as a tenant or mortgagee. She must, therefore, be deemed to be a licensee, a person in possession by sufferance. The plaintiff having proved his title it is for the defendant to show' the basis of her rights to stay on the properly. If the cannot, the plaintiff has certainly an equitable right of ejectment against her,. The first appellate court was clearly in error when it called upon the plaintiff to prove further why the defendant, a non-entity should be ejected while in fact the onus was upon the defendants to show why they should not be ejected. The trial court's view in this regard appeals to be correct. 20. In the result this appeal succeeds. The appeal is allowed with costs. The judgment of the first appellate court is set aside and the judgment of the trial court be restored with the' modification that the defendants are allowed one month's time to vacate the suit property with their goods. Appeal allowed; judgment of the trial Court restored.