Jwala Prasad, J.:— This appeal arises out of a suit for recovery of possession from the defendants. The lands in suit are survey plots Nos. 979 and 1411. The plaintiff and the defendants were co-proprietors in the village in which the lands in dispute are situate. The Record-of-Rights was finally published in the year 1910. Khewat No. I relates to she defendants. In it there is a remark that the father of the defendants, by purchase from the other tenants, is in possession, under section 22(2) of the Bengal Tenancy Act, of 2 acres, 43 decimals by paying rent of Rs. 3-14-0 odd to the other co-proprietors. Plot No. 979 is shown in khatian (Exhibit 40) bakasht kharular. No khatian of plot No. 411 has been filed. There was a Collectorate partition of the estate under Act V of 1897 B.C which terminated in the year 1324 (1917). In the batwara proceedings, the measurements and the Survey Record-of Rights were adopted for the purpose of partition under the batwara Law, Exhibit 3 relates to plot No. 979 and Exhibit 2 to plot No. 1411. By the batwara, those plots have been allotted to the plaintiffs patti. The plaintiffs, therefore commenced an action in the court of the Munsiff of Patna for a declaration of his title to and for recovery of possession of the land from the defendants. The defendants resisted the claim on the ground that the lands in suit were their kasht lands and that the plaintiffs were not entitled to recover possession of the same. The Munsif decreed the suit. The learned District Judge set aside the decree of the Munsif and dismissed the suit of the plaintiffs. The plaintiffs have, therefore, appealed to this Court.
2. The sole question for consideration in this case is, whether the lands in suit are the bakasht of the maliks or the kasht of the defendants. On behalf of the appellants, it is contended that the plaintiffs are co-proprietors in the village and as such acquired the lands in suit and therefore, their possession over the land was that of proprietors and not as tenants and that after the partition they had no right to retain possession of the same. This contention is based upon section 22, clause (2) of the Bengal Tenancy Act which enacts that,
“If the occupancy right is land is transferred to a peri on jointly interested in the land as proprietor or joint permanent tenure holder, he shall be entitled to hold the land subject to the payment to his co-proprietor or joint permanent tenure-holder of the sharee of the rent which may be from time to time payable to them.”
3. In support of this contention, the decisions of this Court in the cases of Bahuria, Janakdulari Kuar v. Bindeshwari Gir(1) and Stonewigg v. Dwarka Singh(2) were cited. The former case related to bakasht lands held separately among the proprietors by private arrangement previous to the partition, and it was held that the co-proprietor and his mortgagee are not entitled to claim exclusive possession of the bakasht lands and they all should be treated as the bakasht of all the proprietors in the partition. That case has no application to the present case, where the defendants, as co-proprietors, purchased the occupancy holdings of tenants in the village. The lands in the present case were originally the bakasht of the proprietors. In the latter case, the defendant was a co-proprietor and also a lessee. He claimed to have acquired occupancy rights in the lands in dispute.
4. There was no evidence of his having purchased the holdings. His possession over them was said to be that of a lessee of the entire 16 annas of the Mauza, and it was held that, after the expiry of the lease, he had no right to claim any right in, the lands and that he could not, therefore, prevent the partition of the same among the co-proprietors. There was no evidence in that case to show that the land was originally occupancy holding. On the other hand, the indication was that the lands were the proprietors' lands, bakasht or zirait. I do not for a moment conceive that the Legislature ever intended, or that the language of section 22, clause (2) can give rise to the interpretation, that a co-proprietor acquiring an occupancy holding by purchase, although entitled to retain possession of the same on payment of rent to his co-sharers, must give it up the moment the estate, in which the land is situate, is partitioned among the proprietors. It will be anomalous and, indeed, unjust be permit a co-proprietor, after the kasht lands in the estate have been purchased by another co-proprietor at great expense, be go to the Collectorate partition and to claim the same as bakasht and to share in the acquisition, to which he has not contributed a single farthing. The section clearly empowers a co-proprietor to hold possession of the kasht land purchased by him, the only condition imposed upon him being that be should pay rent therefor to his co-sharers. There is no limit of time of his possession nor is it controlled by any event, such as the partition of the estate. If his possession was to remain only for so long as the estate was not partitioned, it would have been clearly and unmistakably expressed by the Legislature. I do not on principle, see any reason why a flourishing co-sharer of a small fractional share in the village should be deprived of an opportunity of purchasing lands in occupancy holdings in the village just in the same as stranger would not be allowed to do. Neither law nor equity would make him worse than a stranger. It was not to decide the status of the defendant co-sharer in the present case as to whether he was an occupancy or a non-occupancy tenant. But there can be no question that, whatever be his status, be can resist the claim of possession made by the plaintiffs. In the case of Babu Ram Dheny v. Upendra Nath Koley(3) it was pointed out that the change in clause (2) by the Amending Act of 1907 does not seem to have altered the view as was previously understood, and that a fractional landlord who gets a transfer of an occupancy holding still acquires from the raiyat some sort of tenancy or intermediate interest which prevents him from treating the under-raiyat as a trespasser. The decision in the case of Emamuddin v. Saiyid Mohammad Rashidul Haq(4) is based upon the same principle, vide also Baja Ram Sahu v. Jhoti Gope(5). It is needless to multiply authorities on the subject. It seems to me to be clear that the plaintiff's claim is entirely based upon section 22(2) and that section does not entitle them to recover possession from the defendants, simply upon the ground that they as co-proprietors purchased the holding in question.
5. It is then said that in the batwara khatian the defendants allowed the land to be treated as bakasht, and hence they are not entitled to claim it as their tenancy right. True, they being co-sharers and parties to the partition proceedings are estopped from claiming otherwise than the Record-of-Rights in that case shows. Upon the basis of the Record-of-Rights the valuations of the lands for the purpose of partition were determined and that principle was given effect to in the case of Baldeo Sahai v. Brajnandan Sahay(6) and it was held that the co-sharer is not permitted to show that the land entered as raiyat land was, as a matter of fact, zerait land. But the defendants in the present case do not claim otherwise than what the batwara khatian purports to record.
6. It has already been observed above that the batwara khauan shows the possession of the defendants as kharidar or purchaser under section 22(2), and that plot No. 979 has been recorded bakasht, because it was in the possession of the proprietor. It is, however, neither the has ??? nor zerait. The ??? entry, therefore, is not inconsistent with the claims of the defendant. The Survey Authorities did not dispute their rights. They simply recorded the possession and cleared it by mentioning the section of the Bengal Tenancy Act, under which the co-proprietors defendants were holding under their purchase. It is for the Court to determine what that entry really means and, upon a true interpretation of that entry and section 22(2), I am clearly of opinion that the plaintiffs are not entitled to eject the defendants and that the latter are still entitled to hold possession of the same on paying rent to the plaintiffs and other co-sharers. The claim of the plaintiffs as regards plot No. 979 is not made out and the Court below was right in dismissing it. Plot No. 1411, however, stands on different considerations. It was recorded both in the Survey and in the batwra khatian as the holding of Sheo Dusadh. Before the partition, the defendants took a surrender deed (Exhibit 5) from the son of Sheo Dusadh, dated the 27th January, 1916. In that deed it is stated that the land in question, although recorded as the kasht of Sheo Dusadh, was in reality the khudkasht of the defendants and was, therefore, surrendered. That surrender took place before the partition proceedings terminated in 1917 and the defendants being co-proprietors have no right to take advantage of the surrender in their favour. The original tenant, Sheo Dusadh, or his son was not entitled to make a surrender of the holding to the part proprietors. The defendants cannot, therefore, claim any right of possession as tenants in respect of the plot No. 1411 on the basis of the said surrender. The surrender has been held to be invalid. The learned Judge has not disturbed that finding The land in dispute has fallen by partition in the patti of the plaintiffs and the plaintiffs are, therefore, primarily entitled to possession of the same. The defendant's claim, based upon the surrender, cannot he of any avail as against the plaintiffs and the plaintiffs are entitled to recover possession of the same. As Shoo Dusadh is not a party to the case, his right cannot be affected by this decision. No other evidence has been produced in this case or referred to in the judgments of the Courts below or in the arguments. Again the learned Vakil failed to show that plot No. 1411 was acquired by the defendants in any other way than by the surrender by the son of Sheo Dusadh in 1916.
7. The result is that the plaintiff's claim to plot No. 1411 has been made out and that they are entitled to a decree for possession as against the defendants. The Court below was wrong in dismissing the suit with regard to that plot.
8. The decision of the District Judge is set aside so far as plot No. 1411 is concerned and the suit is decreed accordingly. The appeal is partly decreed. The appeal as to plot No. 979 is dismissed. In view of the circumstances of this case, each party will hear its own costs.
9. Appeal decreed in part.