The Judgment of the Court was as follows:—

These four appeals arise out of three suits brought by the Plaintiffs, Respondents, to obtain a declaration that they are entitled to a 3 annas 15 gundas share in certain lands as appertaining to their zemindari, and that the Defendants have no intermediate tenure in the same which is valid as against the Plaintiffs, and to recover khas possession and mesne profits in respect of the said share. The allegations upon which the suits are based, are shortly these:— That the Plaintiffs have purchased at a sale for arrears of revenue estate No. 3847 recorded in the rent-roll of the Backergunge Collectorate, that the said estate includes amongst other lands a 3 annas 15 gundas share of the lands mentioned in the schedule to the plaint, the remaining share appertaining to certain other estates, that the Plaintiffs were resisted in their attempt to collect rent from the cultivating tenants by the Defendants who set up an intermediate right in the same; and that no such intermediate right can be valid as against the Plaintiffs who have purchased the estate free from all encumbrances under sec. 37 of Act XI of 1859.

The defence was, that the Plaintiffs' share was 3 annas 14 gundas and not 3 annas 15 gundas; that the suit could not proceed in the absence of the proprietors of the estates to which the remaining share of the lands appertained and that the Defendants had a nim ousut talukdari interest in the land in dispute under an ousut taluk which had been created long before the permanent settlement, and which was therefore protected under the exceptions to sec. 37 of Act XI of 1859.

The Courts below have disallowed the objections of the Defendants except the one relating to the extent of the Plaintiffs' share, and given the Plaintiffs a decree in each suit for a 3 annas 14 gundas share.

In second appeal it is contended for the Defendants who are the Appellants, first—That the proprietors of the estates to which the share of the disputed land, other than that claimed by the Plaintiffs, appertains were necessary parties, and the suit could not proceed in their absence; secondly—That the estate purchased by the Plaintiffs comprising, along with other lands, an undivided share in the lands in dispute, the Plaintiffs were not purchasers of an “entire estate” within the meaning of sec. 37 of Act XI of 1859; thirdly—That this suit was not maintainable, no previous notice having been given to the Defendants; and fourthly—That certain quinquennial papers and certain chittas filed for the Defendants were improperly rejected as evidence.

If the suits had been for partition or for exclusive possession of any specific portion of the disputed land, or if partition of the disputed land had been absolutely necessary for the success of the Plaintiffs in these suits, then no doubt the proprietors of the other estates to which the land in dispute partly appertains, would have been necessary parties, and the suits which are brought without making them parties to it would have been liable to be dismissed. But the suits are not for partition or for exclusive possession of any specific portion of the lands in dispute. Nor can it be said that a partition of the disputed lands among the different estates to which they appertain is absolutely necessary for the Plaintiffs' success in these suits, and that the proprietors of the estates other than that purchased by the Plaintiffs are necessary parties, when all that the Plaintiffs really ask for (as will appear from paragraph 6 of the plaint) is not direct or actual possession of the land, but indirect or constructive possession by receipt of rent to the extent of their share from the cultivating tenants, upon a declaration that the intermediate tenure set up by the Defendants has been cancelled by the sale for arrears of revenue.

If the land had been in the direct or actual possession of the Defendants, then there might have been some difficulty in giving the Plaintiffs in this case a decree for possession of their share, such possession being possible only either upon some previous arrangement with the Plaintiffs or their predecessors in interest, which, however, never existed, or upon a partition of the land, which, however, cannot be made in the absence of the proprietors of the other estates to which the land in dispute partially appertains. But that is not the case here. The land in dispute is alleged in the plaint (paragraph 6) to be in the occupation of cultivating raiyats, and the correctness of that allegation was not disputed in the arguments before us. As against the Defendants in this suit, a decree for possession of the land may therefore be given to the Plaintiffs, to the extent of their share, such decree entitling them to realise rents from the cultivating tenants to the extent of that share, and being capable of execution under sec. 264 of the Code of Civil Procedure. And it is such a decree that has been made in suit No. 293 of 1894, out of which second appeal No. 450 has arisen. In the other two suits, out of which the remaining three appeals Nos. 470, 471 and 472 arise, the decree of the first Court, which has been affirmed by the lower Appellate Court, no doubt directs that possession be given to the Plaintiffs “by ousting the Defendants.” The decrees in these cases must be slightly altered in form.

It is quite true that to obtain complete relief, the Plaintiffs must have their share completely separated from that of the proprietors of the other estates. But it cannot be said that they must claim that relief or none at all, when it is not shown that the granting of the smaller measure of relief which is enough to satisfy them, is either impracticable or opposed to any principle.

It was argued for the Appellants that as sec. 37 of Act XI of 1859, under which these suits were brought, entitled the Plaintiffs to “avoid and annul” the under-tenures and “to eject” the under-tenants, and as partition by metes and bounds of the lands in dispute was necessary before they could eject the Defendants, the present suit could not proceed. We do not think that the word “eject” should be construed in the narrow sense contended for on behalf of the Appellants. In our opinion the signification of the word includes such partial ejectment as would result from a decree authorizing realisation by the Plaintiffs of rent in proportion to their share from the cultivating raiyats on the land.

Lastly, it was urged that the decision of a Division Bench of this Court in the unreported case of Kali Prasanna Guha Chowdhuri v. Bulgazi is opposed to the view we take. But that case is, in our opinion, distinguishable from the present in two respects. In the first place, it was found in that case “that the tenures in question were created jointly by the proprietors of both estates,” whereas no such fact has been found in the cases now before us; and in the second place, the suit there was, as the learned Judges of this Court in their judgment observe, “for the recovery of khas, that is, exclusive possession of an eight annas share of the lands comprised in the estate,” whereas the relief asked for in this suit is not, as we have pointed out above, of that nature. On the other hand the view we take, that a decree for partial ejectment and joint possession can be made in favour of a co-owner of property, is to some extent supported by the cases of Hulodhur Sen v. Gooroo Das Roy and Radha Prosad Wasti v. Esuf cited for the Respondents.

For all these reasons, we think the first contention of the Appellants must fail.

As to the second contention, it is enough to say that the estate purchased being admittedly one recorded in a separate number in the Collector's rent-roll with a separate revenue assessed upon it, and the specification in the sale certificate granted under sec. 28 of Act XI of 1859 in the form prescribed by the Act showing that the estate sold was an entire estate, we must hold that the Plaintiffs are purchasers of an entire estate within the meaning of sec. 37 of the Act. The mere fact of a portion of the lands of that estate being joint with those of certain other estates cannot stand in the way of its being an entire estate. The view we take is supported by the unreported case referred to above.

The third contention of the Appellants may be disposed of very shortly. The law does not require any notice as a necessary preliminary to a suit to avoid an under tenure. It is true that an under tenure is not ipso facto avoided by a sale of the estate for arrears of revenue, but is liable to be avoided at the option of the purchaser at such sale, but such option may be exercised by the institution of a suit within the time allowed by law. See Titu Bibee v. Mohesh Chunder Bagchi .

It remains now to consider the fourth and last contention urged on behalf of the Appellants. As to the quinquennial papers, what was filed was an authenticated copy, not of the quinquennial register required to be kept under Reg. XLVIII of 1793, but of a return filed by the zemindar under that Regulation; the case is not therefore within the rule laid down in Oodoy Moni Dassi v. Bisso Nath Butt (5), and it is very doubtful whether the paper comes within the definition of a public document in sec. 74 of the Evidence Act, and whether a certified copy of it was sufficient under sec. 77 to prove its contents. It was argued for the Appellants that the document was a public document, and that, even if it was not, the Courts below ought to have sent for the original which was in deposit in the Collector's Office. But granting that the document was a public document, or that the Courts below ought to have sent for the original, what could it have proved? It is conceded that it could not have been of any use in the suit out of which appeal No. 450 arises; but it is argued that in the other two suits, the papers were relevant evidence to shew that the under-tenures sought to be set aside are held under protected tenures. We have referred to the copy filed and all that it shews in our opinion is simply this, that there was in the estate a ntj taluk, i.e, a taluk held by the zemindar himself in the mouza or village in which the tenure in dispute is situated. But that taluk is not the protected tenure set up, and so the quinquennial paper, even if admitted in evidence, could be of no use to the Defendants, especially when the hebanamah and kabuliat, exhibits H2 and H3, filed to connect the quinquennial papers with the protected tenure set up have been disbelieved by the first Court, and notwithstanding one passage in the judgment, evidently also by the Court of Appeal below.

As for the chittas filed, the Courts below are right in holding that there is nothing to shew by whom and for what purpose they were prepared; and that being so, they have been rightly rejected.

The result then is that the grounds urged before us all fail, and appeal No. 450 must be dismissed with costs. In the other three appeals, namely, Nos. 470, 471 and 472, the words “by ousting the Defendants therefrom” should be expunged from the decree of the first Court which has been affirmed on appeal, and subject to this modification, the decrees of the Courts below must be affirmed with costs.

Appeal No. 450 dismissed.

Decrees modified in the other cases.