Fazal Ali, J.@mdashThis appeal arises out of a suit for the partition of a number of villages which once belonged to a family represented by one Chintaman. Chintaman left five sons--Madhumangal, Bishwanath, Bijaygobind, Narsingh and Bhagwat. Owing to the rule of primogeniture, which obtained in the family, Madhumangal got the bulk of the estate after the death of Chintaman, and certain villages were given to the remaining four sons by way of maintenance. The present suit relates to these villages. The only question which this Court is asked to determine relates to the partition of 441 bighas of land which are situated mainly in villages, viz., Itwa, Simra, Olapur and Chakipar. At this point it becomes necessary to state the previous history of these lands. The record, of rights shows that the bulk of these lands was in possession of a number of tenants who were recorded therein as occupancy raiyats.
2. Some lands were also recorded as ghairmazrua. In 1912 Narsingh and Bhagwat, two of the sons of Chintaman, gave a thica lease in respect of the villages under partition to two persons named Ratu and Ramnarain for a period of nine years. It appears that by this time the whole of 441 bighas was in the cultivation of tenants, and in 1916 the thicadars brought suits for rent against them and obtained decrees against them. On 15th September 1919, the thicadars purchased these lands in execution of their decrees and shortly after that they conveyed them to certain persons by means of two kobalas which were executed on 22nd May 1920 and on 25th September 1920 respectively. By the kobala of 22nd May 1920 the thicadar sold 213 bighas out of the 441 bighas to Narsingh and the sons of Bhagwat, who are still proprietors of a small share in one of the villages under partition; and on 25th September 1920 they sold 228 bighas to one Jagdish Narain who had in the meantime acquired a 3 annas interest in the villages under partition, by means of a kobala executed in his favour by Saraswati, widow of Bijaygobind, one of the sons of Chintaman.
3. The interest which Bhagwat and Narsingh possessed in the property except Maisaha has'' now passed into the hands of defendants 12 to 15, who have preferred this appeal. The whole of the interest of Jagdish Narain has, on the other hand, passed into the hands of defendants 5 to 9 and certain others. Saraswati still retains a small interest in some of the villages under partition; and the remaining share of Bijay-gobind''s branch has now passed into the hands of defendant 10. Similarly, the four annas interest of Bishwanath has been acquired by the plaintiff-respondents. The point which has to be decided by this Court is how these 441 bighas of land are to be partitioned between the persons interested in the villages under partition at present.
4. One of the questions which arose for decision in the Court below was as to the character of these lands. It was contended by the plaintiffs as well as by defendants 12 to 15 that the tenants who were recorded in respect of these lands in the record-of-rights were mere farzidars on behalf of the proprietors and they have throughout retained their character of bakasht lands. The learned Subordinate Judge who tried the suit has however held that the evidence adduced in the case is not sufficient to support this view, and having regard to the entry in the record-of-rights and other evidence, I am not prepared to differ from his conclusion. Thus, for the purpose of this appeal we must start with the assumption that these lands were kaimi jotes of a number of tenants, when they were purchased by the two thieadars, Raktu and Ramnarain,'' in the year 1919. Section 22(3), Bihar Tenancy Act, clearly provides that a person holding land as an ijaradar or farmer of rents shall not, while so holding, acquire, by purchase or otherwise, a right of occupancy in any land comprised in his ijara or farm.
5. This provision has been construed in a number of cases and it has been held that where a thicadar purchases an occupancy holding during the period of his lease he becomes a non-occupancy raiyat in respect of the holding so purchased: see J.P. Morgan v. Ramjee Ham AIR 1920 Pat 97 and
6. By virtue of this new Act a statutory right of transfer is conferred on occupancy raiyats subject to the payment of the landlord''s transfer fee, but no such right is given to non-occupancy raiyats. From this it must follow that these cosharers cannot resist the claim of the other cosharers to a shase in these lands in proportion to their interests in the villages in question. The learned Subordinate Judge, however, has taken a somewhat peculiar view as to the rights of the cosharers in respect of these lands as will appear from the following passage which may be quoted from his judgment:
By the auction purchases the ijaradars got only a precarious right in the lands in question. When they sold the lands to Jagdish Narain Singh the latter became entitled to retain possession over 11 annas share of the lands. He was maintenance-holder of 3 annas share, and in the view of the recital in Ex. B-2 it may be taken that the maintenance-holders of 8 annas share also gave their implied consent to the sale to him. I do not think Jagdish Narain Singh acquired the right to remain in exclusive possession over the remaining 5 annas share of the lands. For similar reasons I think the maintenance-holders who purchased by the kebala Ex. B-2 also acquired the right to remain in possession of 11 annas share of the lands sold by the kebala. It may be mentioned in this connexion that as the holdings in question were not transferable, Jagdish Narain Singh was not entitled to the benefit of Section 22(2), Ben. Ten. Act.
Later on the learned Judge added:
For the reasons given above my finding is that 11 annas share of the lands in Schedule 2 of the plaint is not bakasht of 16 annnas proprietors. Defendants 5 to 9 are entitled to retain possession of 11 annas share of the lands sold by the kebala of which Ex. 0-2 is a certified copy, while the cosharers who now own the interests of the purchasers under the kebala Ex. B-2 are entitled to remain in possession or hold the lands sold by Ex. B-2. The remaining 5 annas share is bakasht of the remaining cosharers maintenance-holders.
7. The result of this decision is that defendants 12 to 15, who have roughly speaking 8 annas share in the villages under partition have been held to be entitled to 11/16 the of 213 bighas out of the disputed lands, and defendants 5 to 9 have been given 11/16ths of 228 bighas; the remaining lands have been divided as between plaintiffs and defendant 10 in proportion to their share in the villages. Now, it appears to me that the view expressed by the learned Judge cannot be sustained. In the first place, there is no justification for the view that Narsingh and Bhagwat, at the time they purchased a portion of the lands, gave their implied consent to the sale of the remaining lands to Jagdish Narain; but even if they had done so, neither of these two vendees could resist a suit for the partition of these lands by the remaining cosharers.
8. It is to be remembered that any transaction which is assented to only by some of the cosharers, cannot be binding on the entire body of landlords and could not alter the character of the land. In the circumstances, which I have already stated, the whole of 441 bighas of land were liable to be partitioned among the cosharer landlords in proportion to their shares; and this is what should have been done by the learned Subordinate Judge.
It was argued by Mr. Bose, who appeared for defendants 5 to 9, that his clients and their predecessor-in-interest having been allowed to take possession of the lands by the other landlords the latter cannot turn round and claim a share in them.
9. But I do not think any case of estoppel or acquiescence arises on the facts of this case, nor does the question of limitation arise, because in the first place, within twelve years of the purchase of those lands from the thicadars, defendants 5 to 9 were dispossessed and they had to bring a suit to recover possession in the year 1932. Again, it has been clearly laid down by the Judicial Committee in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 P C 144 that where lands are held in common, each cosharer is entitled, subject to paying compensation to the other cosharers, to cultivate any part of it not being cultivated by them. This being so, the other cosharers are not thereby ousted and their remedy, if they object, is merely to obtain a partition. The mere fact, therefore, that some of the cosharers allowed others to remain in possession of these lands for some time will not necessarily amount to ouster, nor can it defeat their right to claim partition.
10. In my opinion, therefore, these lands should be divided among the parties in proportion to their share in the villages under partition. It appears that the plaintiffs have a fourth share in all the villages under partition, with the exception of Kathora in which they have 2 annas out of a total share of 8 annas; defendants 12 to 15 have a half share in all the villages except Maisaha in which they have only one-fourth share; defendants 5 to 9 have 3 annas share in most of the villages under partition, but they have only one anna interest in Olapur and have no share in village Kathora; defendant 23 has one anna share in Itwa, Olapur and Maisaha, and half-anna in Kathora (the learned Judge assumes that she has one anna in Simra but that appears to be wrong); defendant 10 has 1 anna share in Simra, 2 annas in Olapur and 1/2 annas in Kathora; and defendants 16 to 20 have 4 annas share in village Maisaha only. All that need be said, therefore, is that these 441 bighas of land should be divided among the various parties to the suit in proportion to their respective shares.
11. Before concluding this judgment it is necessary to refer to a point raised by Mr. Bose, who appears on behalf of defendants 5 to 9. It is pointed out by him that on 9th September 1923 Narsingh, whose interest has now passed to defendants 12 to 15, had sold 12 bighas 15 kathas 8 dhurs out of the lands purchased by him from the thicadars to them. The kebala recites that Narsingh and his cosharers bad been, from the date of their purchase to the time of the execution of the deed, "in possession and occupation as raiyats of the said occupancy kaimi jote lands ", and authorises the vendees to get "their names entered in the office of the landlord as raiyats in my place". It is contended by Mr. Bose. that the defendants 5 to 9 thus acquired a right not only to 228 bighas which they purchased directly from the thicadars, but also to the 12 bighas 15 kathas 8 dhurs which they purchased from Narsingh and which is now claimed by defendants 12 to 15.
12. It appears to me, however, that these lands must be treated in the same manner as the other lands and that all the cosharers are entitled to share them in proportion to their interest in the property under partition. Narsingh was only one of the cosharers, and at the time he sold these lands defendants 12 to 15 had already acquired interest in village Simra in which these lands are situated.
The only other point which needs mention is that defendant 10 having purchased a 2 annas share in Olapur village only, it must be made clear that for the purpose of partition Olapur and Maisaha (which is said to be a dakhili village appertaining to the former) must be treated as two separate units and defendant 10 should be given a share in proportion to his interest in Olapur. The result is that this appeal is allowed'' and the cross-appeals are dismissed. The parties will bear their own costs in this Court.
Varma, J.
13. I agree.
