Bibi Kaniz Fatma v. Sk. Hossainuddin Ahmad

Fazl Ali, C.J:— This is a second appeal by the plaintiff/in a suit which was instituted by her in the Court of the Munsif at Madhubani to recover possession of 8 kathas out of plot no. 1367 and 12 kathas out of plot no. 1365 in village Bandhupati bearing tauzi no. 2456. In this tauzi one Fazlur Rahman, the husband of the plaintiff owned 3 annas odd share and the defendants second party owned 17 gandas odd share. On the 14th July, 1926, the defendant second party settled the disputed land by means of a registered patta with the defendant first party on taking a salami of Rs. 700. It is common ground that the settlement was made only a few days before the commencement of the but war a proceedings, the defendant second party being one of the applicants at whose instance these proceedings were started by the Collector. In the course of these proceedings the disputed land was treated as bakasht and finally allotted to Fazlur Rahman, it being noted in the batwara papers that the land was in the possession of the defendants first party. Shortly after the batwara dakhal-dehani Fazlur Rahman died, and the whole of his estate came into the possession of the plaintiff partly by virtue of inheritance and partly by purchase and in 1937 she instituted the present suit alleging that the defendants first party had no right to remain on the disputed land and praying for recovery of possession.

The defendants first party as well as the defendant second party contested the suit and raised a number of pleas, one of which was that the disputed land had been settled by the defendant second party with the defendants first party with the consent of Fazlur Rahman and the plaintiff was accordingly bound by the settlement. It was further contended that the defendants first party being settled raiyats of the village had acquired an occupancy right in the disputed land and the plaintiff could therefore get the lands only subject to the rights of the defendants first party.

Both the Courts below have found that specific parts of the bakasht lands of the village were in separate possession of different maliks before the commencement of the batwara in 1926 and in their respective judgments they have both referred to an application filed by Fazlur Rahman in March 1927 before the batwara officer alleging that the bakasht lands had already been divided among the maliks. Both the Courts have also negatived the case of the plaintiff that the settlement with the defendants first party was a farzi transaction. They have, however, differed on the question as to whether the defendants first party could in law be ejected from the land. The trial Court after referring to section 99 of the Estates Partition Act and to the interpretation of that section in Mahadeo Prasad v. Jagarnath Prasad held that the present case being covered by that decision the plaintiff was entitled to take the disputed land free from the encumbrance created by her co-sharers by executing the lease to which reference has already been made. The facts of the case on which the Munsif relied were these: A co-sharer malik had granted a mukarrari to certain persons of 4 bighas of bakasht lands held by him separately under a private partition. Subsequently there was a collectorate partition of the estate whereby 3 bighas 16 kathas out of the 4 bighas was allotted to the patti of another co-sharer. That co-sharer brought a suit to recover khas possession of 3 bighas 16 kathas on the allegation that he was not bound by the mukarrari settlement and was entitled to have the land unencumbered with the mukarrari and it was held in that suit that section 99 of the Estates Partition Act applied and the plaintiff was entitled to take direct possession of the land allotted to his patti. Section 99 provides as follows:—

“If any proprietor of an estate held in common tenancy and brought under partition in accordance with this Act has given his share or a portion thereof in patni or other tenure or on lease, or has created any other incumbrance thereon, such tenure, lease or incumbrance shall hold good as regards the lands finally allotted to the share of such proprietor, and only as to such lands.”

The learned Subordinate Judge as I have already said took a different view. He held that the plaintiff was not entitled to recover khas possession of the land, because in view of the provisions of section 21 of the Bengal Tenancy Act the defendants first party who are settled raiyats of the land, had acquired rights of occupancy in it and that being so, they could be ejected from the land only on the grounds specified in section 25 of the Bihar Tenancy Act. On this view he allowed the appeal and dismissed the suit.

This second appeal which was preferred in this Court by the plaintiff was first heard by my brother Chatterji and myself and we ultimately decided to refer it to a Full Bench. The questions which were formulated by us for decision by the Full Bench are these:—

“(1) Whether a person inducted by one co-sharer only on lands belonging to all the co-sharers is a raiyat under the Bihar Tenancy Act and whether such a person can acquire occupancy right by being in possession of such land for 12 years or upwards.

(2) Whether the mere fact that a co-sharer landlord has been in sole possession of certain land for convenience or by mutual arrangement amongst the co-sharer landlords is sufficient to raise an inference that he has implied authority to settle tenants upon the land for convenience of cultivation.

(3) Whether in the circumstances of the present case the defendant first party-can be said to have acquired a right of occupancy in the land and whether he can successfully resist the suit for ejectment.”

The first question clearly falls in two parts and the answer to the second part depends largely on the answer to the first part, because if a person, who is inducted by one co-sharer only on a plot of land belonging to all the Co-sharers is not a raiyat in the sense in which the expression has been used in the Bihar Tenancy Act, he cannot acquire an occupancy right by being in possession of such land for 12 years or upwards. It seems necessary therefore to find out the correct answer to the first part of the question, but I must in giving the answer proceed on the assumption that what we are required to answer is whether the person so inducted by a co-sharer could at the time he was inducted be described as the raiyat of the entire land. Why I emphasise this will be clear from the discussion which follows:

In Kader Baksh v. Ram Manikya Das it was held by a Division Bench of the Calcutta High Court that a person who has obtained settlement of agricultural land from the holder of an undivided share in a zamindary without the consent of the other joint holders, is not a raiyat under the Bengal Tenancy Act. This case furnishes a direct answer to the question, but as it has been vehemently contended before us that it was not correctly decided the matter has to be further examined.

The learned Advocate for the, respondent who challenges the correctness of the decision relies greatly upon the definitions “tenant”, “proprietor”, “landlord” and “raiyat”. These definitions are as follows:—

“Tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land, to that person.

“Landlord” means a person immediately under whom a tenant holds, and includes the Government.

“Proprietor” means a person owning, whether in trust or for his own benefit, an estate or a part of an estate.

“Raiyat” means primarily a person who has acquired a right to hold land to the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners, etc., etc.

It is contended that the raiyat is merely a class of tenant and so a person who is inducted on a piece of land belonging to several co-sharer landlords by one co-sharer only satis fies all the requirements of the definition of a “tenant” as well as “raiyat” and it also satisfies the test laid down in section 5(3) of the Bihar Tenancy Act because the co-sharer who settled the land with him was undoubtedly a proprietor inasmuch as he owned a part of an estate. Section 5 sub-clause (3) of the Bihar Tenancy Act runs as follows:

“A person shall not he deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder.”

The definitions to which reference has been made are undoubtedly in somewhat wide terms and therefore in order to appreciate the true meaning of the expressions which they purport to define, one cannot altogether overlook the purpose and the scheme of the Tenancy Act. The definition of a “raiyat”; for example, has to be read along with the definition of a “holding” which means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. Therefore when we speak of a raiyat, we must remember that he has to be a raiyat of a holding as defined in the Act. Similarly when we speak of a tenant, it may become pertinent to enquire under whom and of what land he is a tenant. Now a person who has been inducted on the land by the holder of an undivided share in a zamindary without the assent of the other joint holders, can acquire only a right in an undivided fractional share of a parcel of land. Dealing with the definition of holding Baneriee, J. in Hari Charan Bose v. Runjit Singh observes as follows:—

“Does this mean an entire parcel or entire parcels or may it also include an undivided fractional share of a parcel or parcels of land? Evidently the definition applies only to an entire parcel or entire parcels and is not intended to include an undivided share in a parcel or parcels and the reason seems to be obvious. A raiyati holding which from the very definition of a raiyat……………means land occupied by a raiyat for the purpose of cultivation can be ordinarily held only in its entirety, and the cultivation of an undivided fractional share of a parcel of land will be ordinarily meaningless………I may add that if the definition of a holding were to include an undivided fractional share in a parcel or parcels of land, the definition would be incompatible with the provisions of sections 121 and 122 of the Bengal Tenancy Act which related to the distraint of crops or other products of the holdings”.

These observations were referred to with approval by Boss, J. in Hossein Mahomed v. Fakir Mahomed and he also reiterated the view that a tenancy in respect of a fractional share of a holding could not be created. In Narayan Ram Sahu v. Kartic Singh it was held on the same line of reasoning that under the Chota Nagpur Tenancy Act a person who has been inducted on the land by one of the co-sharer thikadars without the consent of others could not become a non-occupancy raiyat and Wort. J. in the course of his judgment in that case observed as follows:—

“Were it the law that one co-sharer to the exclusion of and against the will of the other co-sharers could settle a holding with a tenant, in my judgment a great inroad in the law of landlord and tenant could be made.”

Now one of the contentions which was put forward before us on behalf of the appellant was that the definitions which are relied on by the learned Advocate for the respondent should be read in the light of these observations. Briefly speaking the argument was this: When we look at the definition of a tenant as a person who holds the land under another person, it is only logical to hold that the expression “land” means the entire land and “another person” means the sole landlord if the land belongs to one landlord, and the entire body of landlords if the land belongs to more than one landlord. That being so, in order to come within the definition, a person must hold land under all the co-sharers where the land jointly belongs to them.

I would prefer not to express any opinion about the argument as according to the construction we put upon the first question, all that we have to decide is whether a person who is inducted on land belonging to a number of co-sharers by one of them only becomes a raiyat of the entire land. This question in our opinion can be very simply answered. As was held by a Bench of the Calcutta High Court in Radha Proshad Wasti v. Esuf no man has a right to intrude upon his malik's property against the will of his co-sharers or any of them and if he does so, he may be ejected without notice, either altogether, if all the co-sharers join in suit, or only partially, only if some of the co-sharers wish to eject him. How can then a person be said to be a tenant or raiyat of a particular piece of land when he is an intruder with regard to the bulk of it or at least a part of it and can be successfully ejected from that part? The mere fact that he holds under a proprietor, which includes a person owning a part of an estate, does not necessarily make him a raiyat of the entire land. Section 5, clause (3) which says that a person shall not be deemed to be a raiyat unless “he holds the land immediately under a proprietor does not necessarily mean that if he holds an undivided fractional share in the” land which belongs to one of several proprietors only, he becomes a raiyat of the entire land. A single co-sharer where there are several proprietors is not the landlord of the entire land and cannot create a valid tenancy in respect of it but can only create an encumbrance which will be invalidated on partition under section 99 See—Rajendra Narayan v. Hargobind Choudhury.

The view which I have set out above can be supported by reference to certain well-known principles. It was held in Madho Lal v. Mahadeo Rai that a co-sharer has no right to deal with a property in such a way as to affect the rights of other co-sharers and that a person to whom a parcel of land has been allotted by a decree for partition does not ordinarily take it subject to a settlement made by his former co-sharers without his concurrence when the land is the joint property of all the co-sharers. This view was reiterated in Thakur Raghunandan Sahay Singh v. Thakur Dripa Rath Sahai Singh and Mahadeo Prasad Singh v. Jagarnath Prasad. There are a number of other decisions also on the same subject, but it is unnecessary to refer to them in view of the authoritative pronouncement of the Privy Council in Midnapur Zamindary Co. v. Naresh Narayan Roy. Their Lordships observed in that case without any qualification “that no co-sharer can against his co-sharers obtain any jote right, rights of permanent occupancy in the lands held in common nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them”. They also observed that in Bengal a co-sharer has no more power to confer a right of occupancy on a raiyat than a middleman would have, and in Bengal a middleman cannot obtain as a middleman a right of occupancy in himself much less can he create in his tenant a right of occupancy in lands held by him as a middleman. These observations would lose a great deal of their force, if it could be held that a person who was inducted on the land belonging to a number of co-sharers by one co-sharer would become a raiyat of the whole land. If it is correct that he becomes a raiyat of the whole land, then if he is a settled raiyat, he acquires an occupancy right automatically, otherwise he acquires an occupancy right by being in occupation for more than 12 years or upwards. But how can he be a raiyat of the whole land when settlement by one co-sharer is not sufficient to create in him the right to hold the entire land? It is true that in the case to which I have referred their Lordships of the Privy Council repudiated the claim put forward by the Midnapur Zamindary Co. on behalf of the tenants by showing that rights of occupancy could not be acquired in char lands and that there was no evidence that the lands in suit had been held by the so-called tenants for 12 continuous, years before the suit. But in putting forward these considerations they also took care to observe that they would be material if “a holding of land by a raiyat under the Midnapur Zamindary Co., and not under the co-sharers, could confer a right of occupancy on the raiyat as against the co-sharers”. This qualifying statement shows that they doubted whether a right of occupancy could be created under the circumstances assumed.

It has been held in many cases that where a person has been inducted on land belonging to a number of co-sharers by one co-sharer only, the other co-sharers may sue for joint possession. If they sue for joint possession and recover such possession, then the person inducted by the co-sharer landlord being in joint possession with the other co-sharers may be regarded as a tenant in regard to an undivided share; but here his position is quite intelligible in law. Again a holding may be in possession of several tenants who may cultivate the land in partnership with each other. These cases as well as the comprehensive definition of the expression “tenant” incline me to the view that a person may be a tenant under the Bihar Tenancy Act even though he is not the sole tenant or the tenant of the entire land. But when a person has some right with regard to say one-tenth of the holding and he is an intruder with regard to the remaining nine-tenths, could it be said that he is a raiyat of the entire land or holding or that the holding is properly tenanted. I would therefore hold that a person who is inducted upon the land belonging to a number of co-sharers by one co-sharer without the consent or authority express or implied of the former is not a raiyat in respect of the entire land, whatever rights he may have in regard to the undivided share of the land of which a co-sharer, inducting him may be the landlord. He may be a tenant of the co-sharer who has inducted him on the land and as against him he may not be able to say that the relationship of landlord and tenant does not exist, but he is certainly not a tenant of the entire body of landlords and he cannot therefore be a raiyat in respect of the entire land and cannot acquire occupancy right in it by being in possession for 12 years or upwards.

In my opinion this answer is comprehensive enough to cover those difficult cases which may arise by reason of the land which partially belongs to one co-sharer being subsequently owned in its entirety by that co-sharer, or by the person originally inducted by one of several co-sharers only being subsequently placed in joint, possession along with the other co-sharers. In the former case if the land subsequently comes to be owned by the particular co-sharer who had originally inducted the person in question on it, then such a person may become a raiyat, because then he becomes a raiyat under a sole landlord. Similarly in the second case if by partition the tenant, who enjoys joint possession of the land with some of the co-sharers, is allotted a definite portion of the land, he may become a raiyat in respect of that portion.

I will now deal with the second question propounded in the order of reference, namely—

“Whether the mere fact that a co-sharer landlord has been in sole possession of certain land for convenience or by mutual arrangement amongst the co-sharer landlords is sufficient to raise an inference that he has implied authority to settle tenants upon the land for convenience of cultivation.

In a number of cases a question has arisen as to what is the exact position of a person who has been inducted upon ijmali land by one of the co-sharers. Dealing with this subject Garth, C.J summarised the law in Radha Proshad Wasti v. Esuf to which reference has already been made in these terms:

“When a tenant has been put in possession of ijmali property with the consent of all the sharers, or what is the same thing, has been placed there by the managing shareholder, who has authority to act for the rest, no one or more of the co-sharers can turn the tenant out without the consent of the others. But no man has a right to intrude upon ijmali property against the will of the co-sharers or any of them. If he does so, he may be ejected without notice, either altogether, if all the co-sharers join in the suit, or partially, if only some of the co-sharers wish to eject him; and the legal means by which such a partial ejectment is effected, is by giving the plaintiffs possession of their shares jointly with the intruder.”

In those cases where a person has been inducted on the ijmali land with the consent of all the co-sharers or by the managing shareholder, no difficulty can arise. The difficulty, however, arises where the consent is not expressly given and the shareholder who inducts another person on the ijmali land has not been expressly authorised to manage the whole or part of the ijmali property. In such cases a question may arise in what circumstances in spite of the absence of any express authority a co-sharer may be presumed to have been authorised by the other co-sharers to induct a person on the land. The question cannot be precisely answered because there may be a variety of circumstances in which authority may be presumed and there may also be a variety of circumstances in which such authority cannot be presumed. I may however refer to two recent cases of this Court where the subject has been dealt with at some length, these being the cases of Rajendra Narayan v. Hargobind Choudhury and Inder Chand v. Shri Radha Krishnaji. In the first case the proprietors of a mauza having by private arrangement divided the zirat lands of the village among themselves, one of them gave a raiyati settlement at a total jama of Rs. 16 per annum of some land which was in his possession to the defendants. The defendants relied upon this settlement and contended that they had acquired occupancy right in the land by more than 12 years cultivating possession and also because they were the settled raiyats of the village and the land was further recorded as raiyati lands in the batwara proceedings. The plaintiff, on the other hand, claimed among other things that his co-sharer could not create any tenancy right binding against him. The learned Judges of this Court who had dealt with that case came to the conclusion that the answer to the question as to whether the defendants had acquired occupancy rights depended on whether they had become tenants of all the co-sharers or whether they had become tenants only of the person who had settled the land, with him. It was then observed that when it can be held that a co-sharer has an implied authority and does represent the entire body of landlords by virtue of that implied authority, then the settlement by him is binding upon all. The next question which was raised in that case was as to whether a co-sharer who has been placed in sole possession for convenience by mutual arrangement among the co-sharers has an implied authority to settle tenants on the land who by operation of the tenancy law may acquire occupancy lights. The answer which was given to this question was as follows:—

“He most certainly has such an implied authority for all ordinary prudent acts of management. The private arrangement is made for convenience of management of the estate. It surely follows then that, when all the co-sharers put one of their number in sole possession of a particular portion of the estate, there is an implied authority giving him the right to represent them for all the ordinary details of the management, which will include settling raiyats upon estate-land for convenience of cultivation. It would of course only extend to acts done, in good faith for the benefit of the estate.”

In the second case the facts were more or less similar there being this difference only that certain land of which one of the co-sharers was in possession was by mutual agreement between him and the other co-sharers settled in the ordinary course of management by his thikadar. In that case Agarwala, J. adopted the same view as was adopted in the case to which reference has already been made.

In view of these cases, the correctness of which I am not, as at present advised, prepared to question, it may be laid down that where the co-sharers are by mutual arrangement among, themselves in possession of separate portion of the lands of the estate, then from the manner in which these co-sharers deal with the respective portions in their respective possession, a Court of fact may presume that each of them has been authorised by the other co-sharers to represent them for ordinary details of management in dealing with the portion of the estate in his separate possession including the settling of raiyats upon the lands of that portion for convenience of cultivation. If it appears, for example, that each co-sharer has been settling tenants upon the land in his possession to the knowledge of the other co-sharers and without any objection or protest by them, the authority may be readily presumed. Similarly the authority may perhaps be presumed in certain special cases if the settlement is evidently for the benefit of the entire estate and is one which the other co-sharers would have readily assented to, if they had been in direct possession of the land settled. But at the same time it is to be remembered that the right of being in khas possession of lands appertaining to the estate is one of the cherished rights of the landlord and the induction of occupancy raiyats on them or leasing them out to persons who will by operation of law automatically acquire occupancy rights therein may amount to a serious curtailment of that right. Where therefore there is no express authority given by the co-sharers for settlement of land to persons who may acquire occupancy rights therein, the Courts will require very strong and cogent circumstances to, enable them to presume that the co-sharer who had inducted such a person upon the land had authority on behalf of the other co-sharers to do so. In my opinion this should be the answer to the second question which has been referred to us.

The third question has necessarily to be decided with reference to the circumstances of the present case as well as the law already set out in reply to the first two questions. Now there can be no doubt on the concurrent findings arrived at by the Courts below that the bakasht lands of the village were in separate possession of the maliks before the Collectorate partition. There can also be no doubt that the land which was settled with the defendants first party was in possession of the defendant second party at the time of the settlement. It is also established that in a petition which was filed by the plaintiff's husband in March 1927 he distinctly alleged that the bakasht lands had been divided among the maliks and he also referred to the fact that the other co-sharers including the defendant second party had settled lands with tenants on having received handsome premiums for such, settlement. These facts, however, are in my view not sufficient to warrant the presumption that the defendant second party had the authority to settle the land in question in such a way as to deprive the other co-sharers of the khas possession thereof in the event of partition. The peculiar features of this case are firstly that the land was settled by the defendant second party with the defendants first party only a few days before the batwara proceedings began and secondly that it was settled at a somewhat low rent on receiving a nazarana of Rs. 700. Now in the two decisions of this Court, to which I have already referred, it was expressly laid down that settlements could be upheld only if they were made in the ordinary course of management and for the benefit of the estate. Upon the facts of this case, however, it appeal's that the defendant second party was more anxious to benefit himself than to benefit the other co-sharers in making the settlement. The question which requires serious consideration is whether a co-sharer can be held to be acting in the interest of the entire body of co-sharers if he exacts from the tenant as a condition of the settlement a large sum of money by way of salami which is to be appropriated by himself and then proceed to settle the land upon a low rental. The fact that the settlement was made in this case just before the partition proceedings began shows that the defendant second party was anxious to get as much out of the land for himself as he could before the partition. In my opinion, therefore, in the circumstances of this case it cannot be presumed that the defendant second party had implied authority from the other co-sharer landlords to settle the defendants first party on the land. In view of the answers to the first two questions the defendants first party could acquire a right of occupancy in respect of the entire land only if they were inducted upon it by the defendant second party acting under the authority, whether express or implied, of the other co-sharer landlords. This not being established it seems to me that the defendant second party cannot resist this suit for ejectment. It may be stated here that the defendants first party, namely, the tenants who were inducted on the land did not question the decree of the Munsif and did not join the defendant second party in appealing against that decision. One of the questions which was raised before us was whether the defendant second party could resist the suit for ejectment when the defendants first party did not question the decree of the Munsif. In my opinion it is unnecessary to answer that “question because even though” the defendant second party may be entitled to resist the suit for ejectment, he cannot successfully do so.

I would, therefore, allow this appeal with the costs of all the Courts, set aside the judgment and the decree of the lower appellate Court and restore the decree of the learned Munsif.

Chatterji, J.:— I agree.

Sinha, J.:— This is a plaintiff's second appeal from the decision of the learned Subordinate Judge of Darbhahga reversing the decision of the learned Munsif at Madhubani.

The facts leading up to this appeal are as follows: One Fazlur Rahman had a 3 annas and odd share in proprietary interest in tauzi no. 2456, and the remaining interest was possessed by his other co-sharers, including the defendant second party, who owned a 17 gandas and odd share. It appears that the Cadastral Survey, which took place more than forty years ago, recorded the bakasht lands in the several possession of the different sets of co-sharer proprietors. The defendant second party purported to settle in perpetuity about 1 bigha of bakasht land in his occupation, being 8 kathas out of plot no. 1367 and 12 kathas out of plot no. 1365, with the defendants first party by virtue of the perpetual lease dated the 14th of July, 1926. The said lease was granted for a cash consideration of Rs. 700 paid as salami and at an annual rent of Rs. 3-8-0 including cesses. It further appears that a few days after the execution of the perpetual lease aforesaid some of the co-sharers in the estate instituted proceedings for partition in the Revenue Court under the Estates Partition Act. Fazlur Rahman appeared in those proceedings and contested the proposed partition on the ground inter alia that there had been a complete partition of the bakasht lands amongst the co-sharers who were in several possession and had settled their respective bakasht with tenants. But in spite of this opposition by Fazlur Rahman the revenue authorities proceeded with the partition. In the course of the partition proceedings the question was raised as to the lands in dispute in this case, namely, plots 1365 and 1367 aforesaid, but ultimately the partition authorities decided to treat this land as the proprietor's bakasht. The exact position would appear from the following extract from the batwara papers.

Khata no. Tenant's name Khesra. Area. Kind. Sarah. Rs. a. P. Remarks. 229 Bakast malik 0-12-0 Bhith 7/8/- 480 Bakabje-Abhiram and Rambujwan Chaudhary. 229 Bakast malik 0-8-0 Bhith 7/8/- 300 Bakabje-Abhiram and Rambbujwan Chandhary. 1-0-0 780 Bakabje-Abhiram and Rambbujwan Chandhary.

It will appear, therefore, that the revenue authorities did not accept the settlement by the defendant Second party as binding upon the other co-sharer proprietors, though the possession of the settlees was noted in the remarks column. Ultimately, the Collectorate partition, which began in 1926, ended in the year 1932 with the result that the plots in question were allotted to the share of Fazlur Rahman aforesaid. Delivery of possession under the partition was effected on the 31st of May, 1932. It appears, however, that the defendants first party continued in possession of the lands in question in spite of the delivery of possession by the Batwara Court. Fazlur Rahman having died after the conclusion of the Collectorate partition, his widow brought the present suit for ejectment of the defendants first and second parties on the ground, firstly, that the settlement was a mere colourable transaction, and, secondly, that even assuming the settlement to be bona fide the same could not affect her interest as her deceased husband was not a party to the settlement.

Both the defendants first and second parties filed separate written-statements contesting the suit on the ground inter alia that the defendant second party had made a bona fide settlement with the defendant first party to which Fazlur Rahman aforesaid was also a consenting party. They contended, therefore, that the plaintiff had no cause of action for the suit. It was further contended that the defendants first party being settled raiyats of the village had acquired rights of occupancy in the lands in suit which were bakasht lands held by each co-sharer landlord in severalty. The trial Court came to the finding that the settlement was not a mere colourable transaction, that the deed of lease was for consideration and was a genuine transaction by which the defendants first party came into actual possession of the lands. It further held that the bakasht lands in the estate were held in severalty before the Collectorate partition had been effected. The findings of the trial Court may be set out in its own words as follows:

“Now 2 points are clear: one that the bakast lands were partly held, in severalty before the batwara and secondly that the settlement with the defendants 1st party was a genuine one. Now the question arises whether in such circumstances section 99 of the Estates Partition Act has got an application or not. The present case is on all fours with the case of Mahadeo. There also the bakast lands were held separately under a private partition before Collectorate batwara. It was held there that section 99 of the Estates Partition Act applied. No case-law has been cited before me to show that the principle laid down in that case has been either dissented from or overruled. I find therefore that section 99 applies and the plaintiff, is entitled to take lands free from incumrance.

It has been argued before me that the defendants 1st party are settled ryots of the village and so they have acquired occupancy rights (?) the lands in suit. This is no doubt true but then this right, by operation of law, would be transferred to other lands falling in the patti of the lessors. The application of section 99 does not amount to a complete extinction of the right of occupancy; it only transfers the right from one land to some other lands.”

From the judgment of the trial Court giving the plaintiff possession of the ‘disputed lands as against the defendants, the defendant second party only went up in appeal, and it is rather curious that the defendants first party, who were primarily affected by the order of ejectment, did not think it worth their while to prefer an appeal. The lower appellate Court agreed with the findings of fact recorded as aforesaid by the trial Court, but, distinguishing the case relied upon by the learned Munsif and acting upon a later decision of this Court, recorded the following finding:

“In the case of Mahadeo a mokarri tenure, and not a raiyati holding in which rights of occupancy could accrue under the statute, was created by a co-sharer malik. The facts of that case are, therefore, distinguishable from those of the present case. I, in view of the authority laid down in Raja Ram Rai, hold that the plaintiff is not entitled to eject the defendants 1st party, who have acquired rights of occupancy, from the lands in dispute by the application of section 99 of the Estates Partition Act.”

In this view of the matter the lower appellate Court allowed the appeal and dismissed the suit with costs.

From the decision of the lower appellate Court this second appeal has been brought to this Court by the plaintiff. This appeal first came up for hearing before a learned Single Judge of this Court who thought it fit to refer the case to a larger Bench. Then this appeal was heard by a Division Bench of this Court consisting of Fazl Ali and Chatterji, JJ., who, after hearing the case, referred the whole appeal to a Full Bench and formulated the following questions for the decision of the Full Bench:—

“(1) Whether a person inducted by one co-sharer only on lands belonging to all the co-sharers is a raiyat under the Bihar Tenancy Act and whether such a person can acquire occupancy right by being in possession of such land for 12 years or upwards.

(2) Whether the mere fact that a co-sharer landlord has been in sole possession of certain land for convenience or by mutual arrangement amongst the co-sharer landlords is sufficient to raise an inference that be has implied authority to settle tenants upon the land for convenience of cultivation.

(3) Whether in the circumstances of the present case the defendant first party can be said to have acquired a right of occupancy in the land and whether he can successfully resist the suit for ejectment.”

Before dealing with the large volume of the case-law on the subject I propose first to answer the questions referred on a consideration of the general principles of law which are too well-settled now to be questioned. It is a universally recognised principle of law that where property is held in common tenancy one co-tenant cannot deal with the common property in such a way as to prejudice the rights of his other co-tenants. He may use the common property in the usual manner and the other co-tenants may not object to his doing so. But if the other co-tenants object to his using the property in a particular manner, their only remedy is by way of a suit or proceedings for partition. In the case of Midnapur Zamindary Co., Ltd. v. Naresh Narayan Roy, their Lordships of the Judicial Committee have in this connection said this:

“Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husbandlike manner any part of the lands which is not being cultivated by another of his co-sharer, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the land. When co-sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands.”

Now, the question is, can a co-sharer proprietor of an estate jointly held create such rights in third parties in respect of the joint lands as would affect the rights of his other co-sharers? I cannot do better than quote the following extract from Freeman on Co-tenancy and Partition, 2nd Edition, Section 199:

“A lease or deed by one tenant in common to a stranger of a portion of the joint estate, although voidable by the co-tenants who do not join therein, is valid between the paries and against all persons unless so avoided. If the title of the co-tenant entitled to disaffirm the conveyance becomes vested in the one by whom it was executed, the newly acquired-title of this lessor or grantor will enure by estoppel to the benefit, of the lessee or grantee. Such a conveyance is undoubtedly void so far as it undertakes to impair any of the rights of the other co-tenants. It will not justify the grantee in taking exclusive possession of the part described in his deed. It will not deprive the other co-tenants of the right to enjoy every part and parcel of the real estate; nor can it, to any extent, prejudice or vary the right to a partition of the common property. The grantee is liable to lose all his interest in the parcel conveyed to him by its being set off to some other of the co-tenants upon partition. But although the deed does not impair the rights of the other co-tenants, it by no means follows that they may treat it as void, or entirely disregard it. While falling short of what it professes to be, it nevertheless operates on the interest of the grantor, by transferring it to the grantee.”

In my opinion, the universaly recognised principle is no more in doubt. But in this case we are faced with this difficulty that on the findings of fact recorded by both the Courts below, the bakasht lands of the joint estate had been held in severalty by the different sets of co-sharer proprietors. Does that make any difference to the general principle referred to above? If the entire estate had been held in severalty by the co-sharers, no question of partition or of affecting the rights of other co-sharers would have arisen because each co-sharer would be in possession of his part of the estate separately from the others so as to be able to create rights in third parties without reference to the rights of his co-sharers. But in this case the estate was held jointly. Only the lands in the khas possession of the proprietors were held in severalty, obviously for the sake of convenience of management. Such an occupation by the co-sharer, for the time being, of the bakasht lands would be a possession on behalf of the co-sharer proprietors. Does such an occupation vest the co-sharer in possession with the right to deal with that particular piece of land without, reference to the other co-sharer proprietors so as to create in third parties rights which would be binding upon the other co-sharer proprietors? In such a case the position of the co-sharer landlord in occupation of the land for the time being is that of an agent on behalf of the rest. Does the agency go to the extent of conferring upon the co-sharer proprietor the right to deal with the property to the prejudice of his other co-sharers without their express consent to the transaction? In my opinion, it does not. The agency would extend only to his using the land in the ordinary way of cultivation of such lands. But it cannot be said that the other co-sharers had, by allowing him to continue in possession of the land on their behalf, invested him with all the rights which they themselves had. In other words, had they completely divested themselves of their proprietary interest in those lands and clothed the co-sharer in possession with all those rights? The obvious answer is, in my opinion that unless there has been a complete partition, dividing not only possessions but title also, the law cannot assume such an arrangement between the co-sharers as would vest one co-sharer with the rights of all the co-sharers. If the co-sharers completely divest themselves of their rights as such, it amounts to a complete cessation of community of interest, that is to say they cease to be tenants in common and each erstwhile co-sharer then became the owner of the entire land in respect of which he was clothed with those rights. Hence, in my opinion, there is no half-way house between estates in severalty and estates held in tenancy in common. I am fortified in this view by the observations of the Judicial Committee in the case of Basiram Saha Roy v. Ram Ratan Roy, in which their Lordships observed as follows: “It is a view that there is some tertium quid between common tenancy and several holding, and that when this tertium quid exists, if any formal partition supervene, it does not affect or interfere with the arrangement under which landowners who are in some respects still tenants in common may yet have specific shares of the estate allotted to their exclusive enjoyment. The Act does not apparently contemplate any such cases as being possible.”

That being the position, if there has been no complete partition of the estate amongst the co-sharer proprietors, the private arrangement by which the co-sharers are allowed to possess specific plots of bakasht lands would not operate to clothe the co-sharer in possession with the full rights of the sole proprietor and divest the other co-sharers of their rights as such. Hence, in my opinion, on general principles, the first two questions referred to the Full Bench should be answered in the negative.

Now, is there anything in the Bihar Tenancy Act which alters the legal position discussed above, because it has been vehemently argued, on behalf of the respondent, defendant second party, (the tenant defendants first party not having appeared in this Court also) that having been brought upon the land by the co-sharer in possession, the settlee has acquired rights under the Tenancy Act, notwithstanding the fact that a co-sharer cannot in law create a tenancy which could affect the other co-sharers' interest in the land? It is said on behalf of the defendant that the tenants with whom the land in dispute was settled, being settled raiyats of the village, as soon as they were brought upon the land they acquired a right of occupancy therein under the provisions of section 21 of the Bihar Tenancy Act. In order to attract the operation of section 21 the tenant should have held the land in question as a raiyat. Hence, directly arises the question, which is the first one referred to the Full Bench. In order to determine this question we have to refer to the definition of the word raiyat in the Act. In this connection section 5 sub-section (2) may be referred to. But it does not define, rather it describes, the term ‘raiyat’ as a person who primarily has acquired a right to hold land for the purpose of cultivation. Section 4 of the Act says that raiyats are one of the three classes of tenants dealt with by the Act. So ultimately, we have to fall back on the definition of the term ‘tenant’ as given in section 3 clause (iii) of the Act which says:

“tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for the land to that person.”

Hence, in order that a person may hold land as a raiyat be must hold that land under another person who must necessarily be a landlord, which term in the Tenancy Act includes a proprietor or a tenure-holder or an under-tenure-holder. Now, it is obvious that in order to be a tenant of some piece of land it must, ordinarily, be held under a person who is the owner of that land. Consequently, a tenant under only a co-sharer proprietor cannot be a tenant of the land because he is not holding with the consent of the entire body of owners. This view seems to be supported by the only decision which has directly considered this question namely, the case of Sheikh Kader Baksh v. Ram Manikya Das. In that case a Division Bench of the Calcutta High Court is reported to have laid it down that a person who obtains a settlement of agricultural land from the holder of an undivided share in a zemindary without the consent of the other joint holders is not a raiyat within the meaning of the Bengal. Tenancy Act. In the course of their observations their Lordships say this: “The right to hold land for the purpose of cultivating it can ordinarily be conferred only in its entirety for the cultivation of an undivided fractional share of a parcel of land will ordinarily be meaningless.” Hence, so far as the co-sharers other than those who settle the land with the tenant are concerned, their interests are not affected by the settlement. Then, what is the position of the tenant who has been brought upon the land by a particular co-sharer without the consent of the other co-sharers? Is he a raiyat, or a tenant, or merely a trespasser? In my opinion, he cannot be branded as a trespasser, because he is lawfully on the land so long as the other co-sharers do not seek their remedy by way of partition, and the possession of such a tenant is, therefore, not adverse to the co-sharers who have not brought him upon the land. In my opinion, further, there cannot be the least doubt that as against the landlord who has inducted the tenant on to the land, he cannot question the effect of his own act with the result that, if after partition the land is allotted to his share, he cannot be heard in a Court of law, if he were to sue in ejectment.

Counsel for the appellant contended before us that it had been distinctly laid down by their Lordships of the Judicial Committee that a co-sharer cannot create any right of occupancy in a piece of land settled by him with another person, in the case of Midnapur Zamindary Co., Ltd. v. Naresh Narayan Roy, referred to above. Particular stress is laid on the following observations of their Lordships. “No co-sharer can, as against his co-sharers obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.” But the following passage in the judgment of their Lordships would show that they were not deciding the question finally:

“The Midnapur Company alleges as a defence to this suit that tenants of the Midnapur Company, who are not tenants of the co-sharers, have acquired under the Midnapur Company jote rights, rights of occupancy, in the lands in suit. Such rights of occupancy, if they existed, would be raiyati jote rights, but a raiyat cannot acquire under section 180 of the Bengal Tenancy Act, 1885, a right of occupancy in char land until he has held the land for twelve continuous years, and no evidence has been brought to the attention of their Lordships that any raiyat had held any of the lands in suit for twelve continuous years before suit as a tenant of the Midnapur Company, even if a holding of lands by a raiyat under the Midnapur Company, and not under the co-sharers, could confer a right of occupancy on the raiyat as against the co-sharers. In Bengal a co-sharer has no more power to confer a right of occupancy on a raiyat than a middleman would have, and in Bengal a middleman cannot obtain as a middleman right of occupancy in himself, much less can he create, in his tenant a right of occupancy in lands held by him as a middleman. See the judgment delivered by Lord Dunedin in Midnapur Zamindary Company v. Naresh Narayan Roy. See also the cases referred to at page 116 of the commentary on the Bengal Tenancy Act, 1885 by W. Finucane and Ameer Ali (Syed), edited by F.G Wigley, Calcutta, 1904.”

It would appear from the decision of their Lordships as reported that the tenants brought upon the land were not parties to the action which went up to their Lordships; nor were their rights directly in controversy. Their Lordships made those observations on a hypothetical case and on the assumption that a letting by a co-sharer could create any occupancy rights, without deciding that question. Secondly, they were making a distinction between acquisition of occupancy rights by operation of law and the conferment of the right of occupancy by a co-sharer. Hence, in my opinion, the decision of their Lordships in the case referred to above is not an authority for the proposition contended for on behalf of the appellant, though their Lordships would seem inclined towards that view.

Counsel for the respondent, on the other hand, urged that there is no express provision in the Bihar Tenancy Act to the effect that in order to acquire occupancy rights the tenant must hold under all the co-sharer proprietors. On the other hand, it is urged by him that the definition of the term ‘proprietor’ as contained in section 3 clause (2) would indicate that the owner of a part of an estate is also included within the meaning of the term. In my opinion, the inference suggested by Counsel for the respondent does not follow from the definition of the term proprietor 5 as given in the Act. The Legislature had to make provision for all possible contingencies, and it is not difficult to conceive of a case where a person, being only a co-sharer proprietor in the entire estate, still may be the landlord of an entire block of land within the estate so as to be able to create by settlement with third parties tenancy rights under the Act. I may illustrate my meaning by reference to a concrete case. An estate may consist of a number of villages originally belonging to one single proprietor. The proprietor, we may suppose, may part with one of the several villages in favour of another person. The owner of that particular village, by the transfer in his favour, would become the owner of a part of the estate. But it cannot be questioned that he, by settling lands of the village with tenants, can create such rights as would accrue to the settlee under the Tenancy Act. The tenant in such a case would be a tenant of the entire land settled with him though only by a co-sharer proprietor. In my opinion, therefore, the definition of the term proprietor was advisedly made comprehensive enough to include such a case. But it would not extend to the case of one or several co-sharers who may be jointly interested not only in the entire estate but also in the several villages comprising the estate. In other words, where the co-sharers' rights extend to every bit of land within the ambit of the zemindary one co-sharer cannot create rights in third parties which under the Tenancy Act would create rights of occupancy in the land as against the other co-sharers.

Counsel for the respondent further suggested that whereas Section 188 of the Tenancy Act has made provision for all the joint landlords joining together in certain cases, it has not referred to the question of settlement by all of them jointly. We are, therefore, asked to draw the inference that if the Legislature had intended to make it obligatory that in order that occupancy rights might accrue all the co-sharer landlords must join in the settlement with tenants it would have said so in clear terms. On the other hand, Counsel for the appellant has contended that section 188 supports him, because, it is contended, its terms cover the case of settlement with tenants also. In my opinion, section 188 of the Bihar Tenancy Act lends no support either to the appellant or to the respondents. The question is not whether section 188 has made provision in respect of settlement by landlords, but whether there is anything in this section, or any other provision of the Act, which would alter the legal position, as indicated above, under the general law. If there is no express provision or any implied provision to the effect that settlement by a co-sharer proprietor of lands in which a number of co-sharers are interested would lead to the acquisition of occupancy rights, then it must follow that the general law, as discussed above, must prevail. So far as the appellant's contention goes, it is enough to say that the Bihar Tenancy Act does not make any provision requiring or authorising the landlord to make settlements of bakasht lands with third parties. Hence section 188 does not throw any light on the question in controversy in this case. Further, in my opinion, there is no provision in the Tenancy Act which directly or indirectly derogates from the general principles discussed above.

I come now to the consideration of the case-law bearing upon the questions referred to the Full Bench. Counsel for the appellants has relied upon the cases of Thakur Raghunahdan Sahay Singh v. Thakur Dripa Nath Sahai Singh, Madho Lal v. Mahadeo Rai, Mahadeo Prasad Singh v. Jagarnath Prasad and Niranjan Mukherjee v. Sm. Soudamini Dasi. The earliest case of this. Court on the point is the case of Madho Lal v. Mahadeo Rai which appears to support generally the contention raised on behalf of the appellant and lays down that a co-sharer has no right to deal with a joint property, for example, tenancy lands, in such a way as to affect the rights of the other co-sharers. In this case the Division Bench followed the decision of the Full Bench of five Judges of the Calcutta High Court in Niranjan Mukherjee v. Sm. Soudamini Dasi. But neither this case nor the case in the Calcutta High Court followed in this Court discussed the exact question raised before us. In those cases the point does not appear to have been either raised or canvassed whether such a settlement, that is to say, a settlement by one of several co-sharer landlords, could lead to acquisition of occupancy rights by operation of law, apart from what the co-sharer may have purported to confer on the settlee. Another Division Bench of this Court consisting of the same learned” Judges (Das and Wort, JJ.) who decided Madho Lal's case have taken the view in Thakur Raghunandan Sahay Singh v. Thakur Dripa Nath Sahai Singh that a co-sharer, landlord, to whom a parcel of land has been allotted on partition, does not take it subject to a settlement made by his co-sharer without his concurrence when the land was the joint property of all the co-sharers. In this case they followed the decisions in Madho Lal v. Mahadeo Rai, Niranjan Mukherjee v. Sm. Soudamini Dasi and Byjnath Lall v. Ramoodeen Chowdhry. The only other case relied upon by the appellant is the decision of a Division of this Court reported in Mahadeo Prasad Singh v. Jagamath Prasad. This is the case which forms the basis of the decision of the trial Court and which the lower appellate Court has distinguished on the ground that the facts of that case are different from those of the present. But on a close examination of the facts in that case it would appear that they were similar to the facts of the present case inasmuch as, like the present case, there also there was a settlement of about 4 bighas of bakasht lands by a co-sharer in possession with a third party by way of mukarrari, that is, fixing the rent in perpetuity, and out of 4 bighas thus settled, 3 bighas and 16 kathas were allotted to the plaintiff's share. The plaintiff then sought ejectment of the mukarraridar who had been brought upon the land by the other co-sharer. Their Lordships applied the decision in Madho Lal's case, referred to above, to the case before them, and in that view decreed the suit for ejectment. But it does not appear that any question of acquisition of occupancy or non-occupancy rights was mooted in that case. Hence, in none of the cases relied upon by the appellant was the question before us directly raised and decided, though by implication those decisions do support the contention raised on behalf of the appellant.

On the other hand, the cases relied upon by the respondents, namely Raja Ram Rai v. Niranjan Rai, Rajendra Narayan v. Hargobind Choudhury, Inder Chand v. Shri Radha Krishnaji and Ramasray Prasad Chaudhury v. Ram Surat Singh would seem to support the contention on behalf of the respondents that a settlement made by a co-sharer in possession of a piece of bakasht land can lead to the acquisition of occupancy rights by operation of law, though not merely by virtue of the settlement. But on a close examination of the decisions, referred to above, it will be found that none of them strictly applies to the facts of the case before us. In the first case, namely that of Raja Ram Rai v. Niranjan Rai, the suit in ejectment by the representative-in-interest of the co-sharer proprietor, to whose takhta the land had been allotted by partition, was dismissed on the ground inter alia that he had received produce rent from the tenant upon the land inducted by a mortgagee in possession of another co-sharer proprietor. In the case before us if the plaintiff had accepted rent from the settlee, he would be estopped from challenging the tenancy rights of the settlee. But that is not actually the case before us. Again, in the case of Ramasray Prasad Chaudhury v. Ram Surat Singh the facts were entirely different from those before us. In that case one of the co-sharers was managing the property on behalf of all of them and he made a bona fide settlement of newly formed waste lands for the purpose of reclamation and for the benefit of the estate as a whole, and their Lordships, in those circumstances, held that the other co-sharers having acquiesced in the settlement could not challenge the raiyati interest acquired by those persons by twelve years' continuous possession. In that case their Lordships were inclined to take the view that the tenants had acquired rights by adverse possession also. No such question arises in the present case. Referring to the third case, namely, Rajendra Narayan v. Hargobind Choudhury, it would appear that the lands had been allotted to the plaintiff's takhta not as bakasht lands but as rent paying raiyati lands. In my opinion, that would make all the difference between the case before us and the case referred to above, because if the partition authorities divide the lands on the basis that there were tenants having occupancy rights in the land, the landlord in whose takhta they are allotted has no right to challenge the allotment made by the revenue authorities in the Civil Court. There are certain observations made in that judgment which would seem to support the contention raised on behalf of the respondents here, but, as I have pointed out, the facts are not similar to those of the present case. Lastly, the case of Inder Chand v. Shri Radha Krishnaji apparently follows the decisions referred to immediately before, and there was the further fact which distinguishes that case from the present, namely, that the tenant was also a co-sharer proprietor who was entitled to the benefit of the provisions of section 22 of the Bihar Tenancy Act and immune from ejectment on that ground alone. Further, it does not appear from the report in that case as to whether the land had been allotted to the plaintiff's takhta as bakasht or as raiyati giving the proprietor only the right to collect rent from the tenant upon the land. That is a very important consideration which the Court has to bear in mind in determining the question in controversy.

Counsel for the respondent as his last resort sought shelter behind the decision of the Full Bench of the Calcutta High Court in the case of Binod Lall Pakrashi v. Kalu Pramanik. It is enough to say in this connection that was not a case of a settlement purported to have been made on behalf of only a co-sharer proprietor. That decision was based on its own special considerations which do not apply to the facts of the present case. In this connection it may further be observed that a case is an authority for what it actually decides and not for what may logically follow from that decision. It has been said over and over again, both in the Calcutta High Court as also in our own High Court, that the principles laid down in Binod Lall Pakrashi's case, being an inroad into the general principles of law and rights of ownership, should not be further extended.

Hence, in my opinion, the answer to the first two questions referred to the Full Bench should be in the negative, both on general principles as also on a proper construction of the provisions of the Bihar Tenancy Act. In that view of the matter the observations made in the cases reported in 19 Patrie Law Times and 21 Patna Law Times, relied upon by the respondents and discussed above, have gone too far in saying that simply because a co-sharer proprietor has been in occupation of a piece of bakasht land he would be deemed to have implied authority from all the co-sharer proprietors to make a settlement which would be binding upon all the proprietors. If they have laid down any such general principle they are not supported by principle or precedents in their favour. But I am inclined to hold that they are decisions on their own particular facts, not meant to be applicable to cases like the present.

I come now to the discussion of the third question referred to the Full Bench: Are there any circumstances in the present case which take it out of the operation of the general rules indicated above? In my opinion, there are none. In the first place, this was not a settlement in ordinary course of business by a co-sharer in possession. It was a settlement on a huge salami, namely, Rs. 700 for one bigha, which would naturally affect, the annual rate of rent payable by the tenant. This Rs. 700, the nazarana money, was appropriated entirely by the co-sharer landlord, and it has not been suggested before us that the other co-sharers had any benefit out of this nazarana money. Secondly, it was a settlement in perpetuity at a fixed rent which is not an act of prudent management as held by their Lordships of the Judicial Committee in the case of Abhiram Goswami v. Shyama Charan. It may also be noted that the tenant took the settlement with his eyes open, knowing full well that he was taking a settlement from only a co-sharer proprietor, as would appear from the recitals in the registered deed between the parties, and that is the reason why the defendants first and second parties both pleaded that Fazlur Rahman, the plaintiff's deceased husband, was a consenting party to the settlement. Neither of the Courts below has recorded any finding in support of this allegation of the defendant. Hence, the defendants first party must be taken to have known of the possibility of the land being allotted to another co-sharer proprietor on a partition amongst the co-sharer proprietors. Hence, in my opinion, the third question also has got to be answered in the negative. It need hardly be added that we are not in this case deciding the rights and liabilities between the defendants first and defendant second parties.

In the result I would agree that all the three questions referred to the Full Bench should be answered in the negative and that the appeal should be allowed with costs throughout.

Appeal allowed.

H.R.K