Shearer, J.This second appeal arises out of a suit for recovery of possession of certain land. There were two sets of plaintiffs. One set were persons, who had, since 1860 or earlier, been the owners of a three gandas interest in the revenue-paying estate, bearing tauzi No. 1070 on the roll of the Collector of Darbhanga. Between 1885 and 1895, these persons or their predecessors in interest acquired, by purchase or exchange, a number of occupancy holdings. The land in suit formed part of these holdings, and was, subsequently, settled by the plaintiffs first-party with the plaintiffs second-party. There was more than one settlement, the earliest being, apparently, made in or about 1917, and the others sometime after 1923 and before 1930. The whole of the land and other lands were lands appertaining to a number of revenue-paying estates, one of which was tauzi No. 1070, and another of which was tauzi No. 1103.

2. In 1920, an application was made to the Collector of Darbhanga under the Estates Partition Act, and, ultimately, the land was partitioned and allotted, not to the plaintiffs first-party, but to the defendants first-party, who were the proprietors of tauzi No. 1103. In the partition, the land was treated as bakasht land, and, after being put in possession of the new estate formed for them, the defendants first-party settled it with the defendants second-party. A struggle for possession ensued between the plaintiffs second-party on the one hand and the defendants second-party on the other. A proceeding u/s 145, Criminal P.C. was instituted, and, eventually, the plaintiffs second-party relinquished possession and undertook to institute a suit in the civil Courts. The suit, out of which this second appeal arises, was, in due course, instituted, and, in it, the plaintiffs second-party claimed possession of the land, while the plaintiffs first-party asked for a declaration that they were tenants liable to pay rent to the defendants first-party, the plaintiffs second-party being sub-lessees under themselves.

3. The land in suit comprises an area of between 23 and 24 bighas, and was originally part of a larger area of some 57 bighas. 12 bighas out of this 57 bighas was settled in 1870 by the Manjhaul factory, which was then in possession of the estate, in which the land was situated, as a thicadar, with one Prayag Rai. The land appears, then, to have been parti land, and the settlement was for a period of seven years. Prayag Rai seems to have continued to hold over on the expiry of his lease, and, in or about 1885, he gave this land to Sheocharan Singh and Chhotuprasad Singh, the ancestors of the plaintiffs first-party, in exchange for some other land. In 1895, Jakar Singh, the son of Prayag Singh, re-conveyed to Sheocharan Singh and Chhotuprasad Singh a portion of the land, which had previously belonged to them and which Jakar Singh had taken from them in exchange. Certain other land, belonging to Jakar Singh was also conveyed to Sheocharan Singh and Chhotuprasad Singh by this sale deed, the consideration money for which was Rs. 95-10-0. Sometime between 1885 and 1895, Sheocharan Singh and Chhotuprasad Singh purchased from another person an area of 12 bighas lO kathas.

4. This purchase was recognized by the Manjhaul factory, which, in 1888, granted a patta (Ex. 12A) to Sheocharan Singh and Chhotuprasad Singh for the period from 1296 to 1302 fasli. The Courts below have come to the conclusion that, at the time when each of these various transfers took place, the transferor had a right of occupancy in the land, which he transferred. They have, also, come to the conclusion that, in the village in which this land is situated, occupancy rights were not transferable except with the consent of the landlord. It is well settled that, when, in such a village, an occupancy raiyat sells his holding, the land comprised in the holding becomes the khas land of the landlord, and the landlord is entitled to re-enter and evict the transferee, who is in no better a position than that of a trespasser: Lal Bahadur v. Solano (1984) 10 Cal. 45, When the village belongs to a number of cosharer landlords, and when the transferee is one of them, the other cosharers are not, of course, entitled to evict him, the reason being that every one of the cosharer landlords is entitled to possession of every portion of the common land. There are, however, two remedies open to them, one is to sue to be put in possession jointly with the transferee to the extent of their shares in the estate; the other is to enter into an arrangement with the transferee, under which the transferee remains in exclusive possession and pays them compensation. Every co-owner, in possession of more of the common land than his interest in the estate strictly entitles him to, is liable to pay compensation to the other co-owners: Watson & Co. v. Ram (1991) 18 Cal. 10.

5. If the other co-owners take the latter course instead of the former, can it be presumed that, by doing so, they have waived their right to have so much of the land or an equivalent area of bakasht land elsewhere allotted to them on a subsequent partition Cosharer landlords may, no doubt, enter into an arrangement, under which one of them is permitted to remain in exclusive possession of some specific parcel of bakasht land, on the understanding that, at a subsequent partition, this land will be allotted to him and to no one else: (see a passage from Knapp on Partition, quoted at p. 418 in R. C. Mitras Tagore Law Lectures on the Law of Joint Property and Partition in British India). If, however, any arrangement of this kind has been entered into, it is for the co-owner, who seeks to take advantage of it, to assert his claim, which is an equitable and not a legal claim, in the partition suit, and to show there that the remaining co-owners are estopped, by their previous conduct, from having any portion of the land, which was the subject-matter of the arrangement, allotted to them. Once a partition has been made by the revenue Courts, it is not open to any of the co-owners to come to the civil Court and ask it to disturb the partition on the ground that some equity, which arose in his favour, was ignored by the revenue Courts. But it is, in my opinion, impossible to infer from the conduct of the other co-owners in acquiescing in one co-owner remaining for any length of time in exclusive possession of a portion of the common land, and from nothing else, that the former have waived any right to share in this land at a subsequent partition, still less, that they have waived their right to have an equivalent portion of the common land elsewhere allotted to them, if the whole of this particular parcel is allotted to the co-owner, who had, prior to the partition, been in exclusive possession of it. It has to be remembered that, if cosharer landlords sue to be put in joint possession of an occupancy holding, along with the remaining cosharer, who has purchased it, and obtain a decree, they will, under such a decree, not be put in possession of any specific land. The possession, which will be given them, will be merely what is known as symbolical possession. If they cannot come to some amicable arrangement with the judgment-debtor, they will be compelled to institute a suit for partition, and, if they institute such a suit, they will have to sue for the partition of the entire estate.

7. From sometime before 1870, and at least until 1903, and, possibly, for sometime thereafter, the estate, in which the land in suit is situated, was in the possession of the Manjhaul factory as a thicadar. As I have already said, the Manjhaul factory, in 1888, granted a patta (Ex. 12-A) to the predecessors in interest of the plaintiffs first party in respect of 12 bighas 10 kathas out of the entire area of 57 bighas; of which the land in suit forms part. The Manjhaul factory sued the predecessors in interest of the plaintiffs first-party for the rent due in respect of this 12 bighas 10 kathas and also for the rent due in respect of the rest of the land. The Courts below have come to the conclusion that the Manjhaul factory had authority to settle bakasht land and to recognize transfers of occupancy holdings. This conclusion was based on a construction of two leases to the Manjhaul factory, which is, I think, open to a good deal of criticism. I will, however, assume that the Manjhaul factory did, in fact, have such authority. When a thicadar, possessing the requisite authority, recognizes the transfer of an occupancy holding, which is not transferable by custom except with the consent of the landlord, any right, which the transferee has to continue in possession of the occupancy holding, when the lease of the thicadar ends and the landlord resumes possession of the estate, is not derived from any contract, into which he may have entered with the thicadar, but is conferred on him by one or other of the provisions contained in the Tenancy Act.

8. It is, by reason o the provisions contained in the Tenancy Act, that the transferee acquires or may acquire a right of occupancy. If, however, the transferee is not a third person, but one of a number of cosharer landlords, the position is otherwise. A right of occupancy must be acquired against some one, and, on principle, a cosharer landlord cannot acquire a right of occupancy against himself : see Ram Lal v. Bhela Gazi (1910) 37 Cal. 709. It is, no doubt, true that, so long as the Manjhaul factory was in possession of the estate as a thicadar, the predecessors in interest of the plaintiffs first-party were their lessees. When, however, the lease of the Manjhaul factory came to an end, did they continue to be lessees under their co-owners It is, I think, very doubtful, if one cosharer landlord in exclusive possession of a portion of the bakasht land and paying compensation for such exclusive possession to the remaining cosharers, can be regarded as a tenant of these cosharers. I can find no authority on the point except a case decided so far back as 1869 : Kali Pershad v. Shah Lutafut (69) 12 W.R. 418. The question that arose there, however, was really whether a suit by the remaining cosharers to recover compensation from the cosharer in exclusive possession, of some of the bakasht land, was cognizable by the revenue or by the civil Courts.

9. In any case, if it could be said that the predecessors-in-interest of the plaintiffs first-party were, on the expiration of the thica of the Manjhaul factory, permitted to hold over under the lease granted to them by the Manjhaul factory, they were tenants from one agricultural year to another. At the most, they might now complain that they could not legally be ousted, as in fact, they have been ousted, without having had a proper notice to quit served on them. The view, however, which has, I believe, always been taken is that, when cosharer landlords are in possession of specific parcels of bakasht land, this is in consequence of an arrangement, which is understood by all of them to be a temporary arrangement, liable to be disturbed at a subsequent partition: see Raghoobun Tewaree v. Bishen Dutt (1865) 2 W. R 92. Act X R. . In this particular case, there is no evidence to show that on the expiry of the lease of the Manjhaul factory, the remaining cosharers merely acquiesced in the arrangement that had been come to between the thicadars on the one hand, and the predecessors in interest of the plaintiffs first-party on the other, and did not themselves enter into some new and other arrangement. The entry in the record of rights shows that the land in suit was, in 1903, when the record of rights was finally published, either the bakasht or the gair mazrua khas land of the landlord. There is a presumption of correctness attaching to this entry, and, even, apart from this, there is no reason, in my opinion, to suppose it is erroneous. The expression "lagan" which occurs in the remark column, means assessment on land and is wide enough to cover compensation as well as rent.

10. If the land was bakasht land which had, prior to the partition, been in the possession of the plaintiffs first-party, and, as a result of the partition, was allotted to the defendants first-party, the plaintiffs first-party are not entitled to recover possession of it. It makes no difference that the land was, at one time, an occupancy holding, which was purchased by the predecessors in interest of the plaintiffs first-party. On this point, there is a direct authority of this Court in Lachmi Narain v. Kamsafan AIR 1929 Pat. 185 . As to the plaintiffs, second-party, they have taken settlement of bakasht land from one of a number of cosharer landlords, and, at a partition, this land has-been allotted to another cosharer. In the recent Full Bench decision of this Court, Kaniz Fatma v. Sk. Hosainuddin AIR 1943 Pat. 194 it was held that so far as the latter is concerned, the lease is void and of no effect, and he is entitled to evict the lessee. It is, however, contended that both sets of plaintiffs had a statutory right to retain possession of the land in suit, which right they derived from the provisions contained in Section 22(2), Bihar Tenancy Act. Whether Section 22(2), Bihar Tenancy Act, has any application, is a matter not free from difficulty, and will have to be examined later.

11. The case was, however, dealt with in the Courts below, and the argument in second appeal has proceeded on the assumption that the provisions contained in Section 22(2), Bihar Tenancy Act, did apply, and I will assume for the present that this was so. The plaintiffs first-party assert that they had a tenancy interest in the land, and that such interest was not and could not be taken away from them, merely because, as a result of partition, the land was allotted to the takhta of another co-proprietor. I have been unable to trace any decision of the Calcutta High Court which bears directly on the point and in which it has been held that a cosharer landlord, who has purchased an occupancy holding, is entitled to retain possession of that holding, even if, at a partition, it is allotted to another cosharer. I may, however, draw attention to the amendment, which was made in Section 22(2), Ben. Ten. Act, in 1928. As a result of that amendment, when an occupancy holding is purchased by a cosharer landlord, the land comprised in it becomes the bakasht land of the entire body of landlords, if the purchase has been made in execution of a decree or certificate for arrears of rent, the purchasing cosharer being, however, entitled to retain possession of it on payment of compensation to the other cosharers. If, on the other hand, the occupancy holding has been acquired in any other way, the cosharer landlord, acquiring it, is entitled to retain possession of the land "together with the occupancy right therein." It is quite clear that, when the Bengal Legislature amended Section 22(2) in this way, it was under the impression that it was conferring rights on cosharer landlords which they did not previously possess, and was not taking away from them any rights, which they already had. Yet, if certain decisions of this Court, to which I will refer presently, are correct, the position was diametrically the opposite.

12. The point, now under consideration, appears to have come before this Court for the first time in 1918. In 428, Stonewigg v. Dwarka Singh AIR 1918 Pat. 422 Jwala Prasad J. laid down the law as follows:

The defendant lastly relies upon Clause (2), Section 22, Ben. Ten. Act, for his contention that he cannot be dispossessed from the lands, but that he is only liable to payment of rent to the co-proprietors. This might have been so as long as the village was held jointly by all the proprietors but on a partition of the lands the defendant as co-proprietor has no right to claim possession of the lands under Clause (2), Section 22 of the Act. The clause is intended to prevent a co-proprietor from acquiring occupancy rights in the lands transferred to him: vide Ram Lal v. Bhela Gazi (1910) 37 Cal.709. In the next place, the argument of the defendant is based upon the assumption that he acquired an occupancy right in the land. But as a matter of fact, as already shown, neither under the lease nor upon evidence on the record the defendant acquired any raiyati interest, occupancy or non-occupancy, in the lands in suit. I fail to appreciate the contention of the learned vakil for the appellant that, conceding that he could not acquire an occupancy or non-occupancy right under Clause (2) as a co-proprietor still he has some interest under Clause (2) of Section 22 and that he could not be deprived of that right to hold possession of the lands. But the defendant was either a raiyat or a landlord. It has been shown that he is not a raiyat and is only a co-proprietor. He is, therefore, bound to give up possession of the lands held by him as a lessee and to allow the lands to be partitioned and distributed between the co-proprietors of the village.

Dawson-Miller C.J. said:

I have had an opportunity of consulting with my learned brother in this case, and I entirely agree with the judgment he is about to pronounce.

13. In 1920, the point came before Adami J. sitting singly, in Mathura Sahu v. Chandradip Singh AIR 1920 Pat. 770 and although the earlier decision in 428, Stonewigg v. Dwarka Singh AIR 1918 Pat. 422 was, apparently, not cited, he came to the same conclusion. Against this decision of Adami J., there was a Letters Patent appeal, which was allowed by Jwala Prasad J. sitting with Das J. This was in 1921, and, in the previous year, the point had, again, come before Jwala Prasad J. sitting singly. The decision is reported in Ram Prasad v. Gopal Chand AIR 1921 Pat. 341 and, as it was the basis of the decision in the subsequent Letters Patent appeal, and, also, to a large extent, of some other later decisions of this Court, it is necessary to deal with the argument, by which it was supported, in some detail. In the course of his judgment, jwala Prasad J. observed:

It will be anomalous and, indeed, unjust to permit a co-proprietor, after the kasht lands in the estate have been purchased by another co-proprietor at great expense, to 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.

14. I entirely agree that this would be unjust, but I am, by no means, satisfied that the law, as it stands, is powerless to prevent such an injustice. When a cosharer landlord purchases an occupancy holding, he, in effect, procures, for a consideration, a surrender by the occupancy raiyat of his rights in the land comprised in the holding. I can see no distinction between the case of one of a number of co-lessees, who obtains in his own name a renewal of a lease, and the case of a number of co-lessees, who obtains in his own name and for his own benefit a surrender of a lease. In each case, there arises a constructive trust. If a cosharer landlord purchases an occupancy holding, which is transferable by custom without the consent of the landlord, the true ground, on which, in my opinion, he is entitled to resist a claim by the other cosharers to be put in joint possession along him, is that, as a condition precedent, they are bound to contribute to the expenditure, which he has incurred in purchasing it. If, at a subsequent partition, the occupancy holding has, for any reason, to be allotted to the estate formed for another cosharer, the latter can surely be required to reimburse the purchaser. Partition is an equitable remedy, and, at a partition, all equities that may arise as between one co-owner and another can and ought to be adjusted. But the right of the purchasing cosharer to be reimbursed is an equitable right, and must be put forward and established in the proceedings in the revenue Court, if the estate is partitioned under the Estates Partition Act. Jwala Prasad J. then, went on to say:

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 he should pay rent therefore to his cosharers. 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.

15. Before I proceed to deal with this part of the argument of the learned Judge, I would observe that it is essential to bear in mind how and why Section 22(2), Ben. Ten. Act, came to be amended in 1907. In 1905, a Full Bench of the Calcutta High Court in Rammohan Pal v. Sheikh Kachu (1905) 32 Cal. 386 had re-affirmed an earlier decision of a Special Bench in Jawadul Huq v. Ram Das (1997)24 Cal. 143 . In each of the suits, out of which these appeals arose, the plaintiffs were certain cosharer landlords and the defendants were the remaining cosharer landlords, who had purchased occupancy holdings, which were, by custom, transferable without the consent of the landlord. The plaintiffs, in each suit, asked for a decree for joint possession. Both suits were dismissed. Goosey who was a member of the Full Bench, which decided 11.Rammohan Pal v. Sheikh Kachu (1905) 32 Cal. 386 had, in the course of his judgment, suggested that the status of a co-proprietor, who had purchased an occupancy holding, was or might be that of a non-occupancy raiyat. If this tentative expression of opinion was correct, two results would or might have followed. In the first place, the status of any person, to whom the purchasing co-proprietor sublet any portion of the holding, would have been that of an under-raiyat. Secondly, it might, with some show of force, have been contended that, in course of time, the purchasing co-proprietor might himself acquire a new right of occupancy in the land, which he had purchased. This latter contention was in fact, put forward on a number of occasions, as for instance, in Ram Lal v. Bhela Gazi (1910) 37 Cal. 709 although it would appear to have been consistently negatived.

16. The object of the Legislature, amending the section, was to prevent these consequences ensuing, and to ensure that the purchasing cosharer would never acquire a right of occupancy and that, if he sub-let the land, the sub-lessee, if a settled raiyat, would acquire such a right at once and automatically, and, if not a settled raiyat, would acquire it in course of time. In enacting that the purchasing cosharer should be "entitled to hold possession" the Legislature was merely declaring the law as it had already been declared to be by the Calcutta High Court, and, in adding the words "subject to the payment to his co-proprietors of the shares of the rent which may be from time to time payable to them," it was endeavouring to put the other co-proprietors in the same position as if the occupancy holding had continued to exist, as the Calcutta High Court had said, I think, erroneously, it did. Although Jwala Prasad J. did not himself go quite so far, the observations of his, which I have just quoted, appear to be the foundation of the theory, which was later put forward, that Section 22(2), as amended in 1907, created an anomalous or peculiar tenancy. This appears to rest on two grounds. One is the omission in Section 22(2) of what Jwala Prasad J. called any "limit of time of possession." In elaborating this point to some extent in a subsequent decision, Dhavle J. said :

Undue stress must not be laid on the word co-proprietors occurring in Sub-section (2) of this section. As my Lord the Chief Justice pointed out during the course of the argument, what the learned advocate for the appellant has endeavoured to do is to read into the affirmative proposition contained in Clause (2) of Section 22 a negative provision that a purchasing cosharer will have no right at all to the land as soon as he ceases to be a cosharer by reason of the partition : vide Dhaneshwar Kuar v. Chandradhari Singh A.I.R, 1936 Pat. 317 .

But is it really necessary to read any "negative provisions" into the Sub-section as it stands The right, which a cosharer landlord, who has purchased an occupancy holding, has to retain possession of it, is a right, which belongs to him in his capacity as a co-proprietor. If he sells his undivided interest in the estate, his right to the occupancy holding passes by the conveyance : vide Bambahadur Lal v.Gungra Kuer AIR 1925 Pat. 547 . If there is a partition, and new estates, representing their undivided interests, are formed for him and the other co-proprietors, will not his right, on the same principle pass under the decree Surely it is axiomatic that, when an estate belonging to several co-owners is partitioned into a number of new estates, the owner of each one of these new estates has no interest or rights of any kind in any of the other estates. There can be but two exceptions to this general rule. One is where, in the partition, it has been specifically provided that one co-owner shall continue in possession of some particular parcel of land although that land has been allotted to the estate of another co-owner. In England or America, this would not, I think, in any case be done, but the nature of revenue-paying estates in this country and the restrictions, which arise from the necessity of securing the stability of the land-revenue, are such that the Legislature has thought fit to permit it. Section 64, Estates Partition Act, requires that, when the land, on which the house of one co-proprietor stands, is allotted to the estate formed for another co-proprietor, the former shall be entitled to continue in occupation of this land on payment to the latter of rent, the amount of which is to be fixed in perpetuity. Section 65 gives the Court a discretion to apply the provisions of Section 64 to certain other categories of land.

17. The other exception is where a co-proprietor has an interest, separate and distinct from his interest as a co-proprietor in some parcel of land allotted to the estate of another co-proprietor. If, for instance, a co-proprietor was an occupancy raiyat before he became a co-proprietor, he is entitled under Sub-section (3) of Section 22 to retain his right of occupancy, and it necessarily follows that, on a partition, his position is unaffected if the holding is not allotted to the estate formed for him, except that, in future, he will have to pay the full rent for the holding to the other co-proprietor, to whose estate it falls. This Sub-section would not seem to have been enacted merely in order to enable such a co-proprietor to sub-let, without creating in the sub-lessee a right of occupancy as against himself. It would also seem to have been enacted in order to safeguard the rights of the co-proprietor at a subsequent partition. It is, I think, perfectly clear that, in 1885, the Legislature drew a sharp line of distinction between an occupancy holding, which had belonged to a co-proprietor before he became a co-proprietor, and an occupancy holding, which he had acquired after he became a co-proprietor. As to the former, the co-proprietor was to retain it, and his rights in it, whatever might happen at a subsequent partition. As to the latter, no similar provision was made either in the Bengal Tenancy Act or in the Estates Partition Act, and it seems to me necessarily to follow that, if it was allotted on partition to a co-proprietor other than the purchasing co-proprietor, any rights, which the latter had in it, were extinguished by operation of law.

18. The other ground, on which the theory of an anomalous tenancy is based, is the use of the word rent instead of the word compensation in Section 22(2). In the Eastern Bengal and Assam Tenancy Act, in the Orissa Tenancy Act and in Section 22(2), Ben. Ten. Act, itself, as amended in 1928, the word compensation, and not rent, is used. The use of the word rent may, perhaps, have been due to an oversight on the part of the draftsman. More probably, the word was, I think, used advisedly in order to make the special period of limitation applicable to suits by the other cosharers to recover anything due to them by the purchasing cosharer. As I have already had occasion to point out, the view, taken by the Calcutta High Court, prior to 1869, when rent suits were tried by the revenue and not by the civil Courts, was that suits of this kind were essentially suits to recover rent, and were properly cognizable by the revenue Courts. The draftsman could scarcely be expected to have foreseen what the consequences of his using the word rent instead of compensation were to be. How can it possibly be assumed from the use by the Legislature of a single word, which may, perhaps, not have been the most apt word that could be found, but the use of which can be quite satisfactorily explained, that its intention was to convert one of a number of co-owners into a tenant under the rest, especially, when it left wholly undetermined the incidents attaching to this very peculiar and anomalous tenancy It has been far too readily assumed that, if an occupancy holding, which has been purchased by one co-proprietor, is allotted at a partition to the estate formed for another co-proprietor, an injustice must necessarily be done to the purchasing co-proprietor if he is not permitted to retain possession of it, and no injustice can possibly be done to the other co-proprietor, if he is permitted to retain possession of it. This however, is very far from being the case.

19. As I have said, already, the purchasing co-proprietors right to contribution, if he has not waived it, can be adjusted at the partition. On the other hand, if he is to retain it, and then sub-lets the land, what security has the other co-proprietor, to whom it has been allotted, for his rent The sub-lessee has or may have a right of occupancy and cannot be evicted if the holding has to be sold and purchased in execution of a rent-decree. In other words, the rent is not a first charge on the holding. In my opinion, the Legislature in 1907, as it had previously in 1885, left it to the discretion of the batwara deputy collector to deal with the land comprised in such an occupancy holding in such manner as was fair and equitable. If the Sub-section is interpreted as meaning that the purchasing co-proprietor is to remain in possession so long as the estate remains undivided, it is not necessary to add to or subtract a single word from it. The meaning of the language is, to my mind, plain. To put the other and rival construction on it however is surely to read into the words a great deal more than is there. For instance, must not the words "on payment to his co-proprietors of the shares of the rent" be construed as meaning, besides what they say, also "on payment to the individual who was his co-proprietor of the whole of the rent which was payable by the original occupancy raiyat." How can this possibly be done And, if it could, why should it be

20. The conclusion, at which Jwala Prasad J. arrived in Ram Prasad v. Gopal Chand AIR 1921 Pat. 341 was stated thus:

It seems to me to be clear that the plaintiffs claim is entirely based on 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.

21. The defendants, it should be explained, were the purchasers of the occupancy holding, and, at the batwara,, it had been allotted not to their takhta, but to the takhta of the plaintiffs. This conclusion may be contrasted with the conclusion arrived at by jwala Prasad J. in the earlier case in 428, Stonewigg v. Dwarka Singh AIR 1918 Pat. 422. I have already quoted at some length from that judgment but it may be as well to set out again here the following:

The defendant lastly relies upon Clause (2), Section 22, Ben. Ten. Act, for his contention that he cannot be dispossessed from the lands, but that he is only liable to payment of rent to the co-proprietors. This might have been so as long as the village was held jointly by all the proprietors but on a partition of the lands the defendant as co-proprietor has no right to claim possession of the lands under Clause (2), Section 22 of the Act.

I see no way at all of reconciling the statement in the earlier judgment with the statement in the later. It may be that, in the later case, it was admitted that the land in suit was comprised in an occupancy holding, which had been purchased by a cosharer landlord, and that, in the earlier case, this was merely asserted but not proved. That however was no reason at all for deciding the earlier case in one way and the later case in another. I am bound to say that, if Jwala Prasad J. considered that the later case ought to be decided in the way he did decide it, he would have been well advised and indeed ought to have referred it to a larger Bench.

22. The point next came before a Divisional Bench consisting of Das J. who had concurred in the judgment of Jwala Prasad J. in Nandkishore v. Mathura Sahu AIR 1922 Pat. 193 and Adami J. This decision is reported in Basudeo Narain v. Radha Kishan AIR 1922 Pat. 62 which was apparently decided very shortly after the judgment in Nandkishore v. Mathura Sahu AIR 1922 Pat. 193 was pronounced. In this case, the occupancy holding had been purchased prior to 1907, and it was therefore, unnecessary for Das J. to construe Section 22(2) as it stood after the amendment made in that year. In deciding that the purchasing cosharer was entitled to retain possession of the occupancy holding after the partition, Das J. relied on the observations of Ghose J. in Rammohan Pal v. Sheikh Kachu (05) 32 Cal. 386 (F.B.). As I have already pointed out, the other learned Judges, who were parties to that decision, did not go so far as Ghose J. did and the correctness of his observations was doubted in more than one subsequent decision. Moreover, it was, in consequence, or largely in consequence, of these observations, and the possible results that might ensue, that Section 22(2), Ben. Ten. Act, was amended.

23. In 1924, their Lordships of the Judicial Committee delivered their judgment in Midnapore Zemindary Co., Ltd. v. Naresh Narayan AIR 1924 P.C. 144. There can, I think, be no doubt but that although their Lordships were not there construing the provisions of Section 22(2), they certainly had the section in mind, at least as it stood prior to 1907. This was apparently urged when the point, now under consideration, again came before a Divisional Bench of this Court consisting of Das and Ross JJ. in Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 263 . Ross J., however, after quoting from the judgment in Midnapore Zemindary Co., Ltd. v. Naresh Narayan AIR 1924 P.C. 144 dismissed it, I venture to think, much too summarily, with the observation:

Now this general statement of the law must be read subject to the provisions of Section 22(2), Ben. Ten. Act, where the consequences of the purchase of an occupancy holding by a person jointly interested in the land as proprietor are enacted.

The learned Judge then went on to say:

Section 22(2) confers a privilege on the purchasing cosharer which is in derogation of the common law right of the other cosharers as stated in the judgment of the Judicial Committee quoted above. I do not see what there is in partition to take away that privilege. On the contrary, it would appear that the partition only removes the necessity for the limitation on the effect of the purchase and would set free the holding to be operated upon by the ordinary provisions of the law in other words, Section 22(2) imposes a limitation on the rights of the cosharers for the benefit of the purchasing cosharer; and there is no reason why this limitation should be removed by reason only of a partition taking place.

I must confess to some difficulty in understanding this. Among co-owners there is unity of possession, and every co-owner has a right to possession over every portion of the common land. If one co-owner occupies any portion of the common land to the exclusion of the others, and the exclusion amounts to an ouster, the others are entitled to sue in ejectment. In such a suit, they will be given a decree entitling them to be put in joint possession along with the defendant to the extent of their interest in the estate. If, in execution of such a decree, a writ for delivery of possession is issued, the possession given under it will be symbolical and not actual possession. If, therefore, the judgment-debtor declines to enter into some amicable arrangement, the decree-holders will be driven to their ultimate remedy, which is a suit to the partition of the entire property. Partition being an equitable remedy, any equity, which may arise in favour of the defendant co-owner, will, o course, have to be adjusted. Does Section 22(2), Ben. Ten. Act, as amended in 1907, abolish or curtail any of these fundamental rights and privileges of co-owners

24. At the most, it may, perhaps, be urged that a suit to recover joint possession would now have to be dismissed. If the plaintiff co-owners in such a suit had offered to re-imburse the defendant co-owner, I am very doubtful if that would necessarily be the result. But, even if it were, the ultimate right of the other co-owners to institute a partition suit, and, subject to the adjustment of any equities, that may arise, to share in that portion of the common land from which they have been excluded, is, quite clearly, not taken away. Ross J. appears to have thought that, so long as the estate remained undivided, the occupancy right in a holding, purchased by one of the cosharers, merely remained in abeyance, but that, if and when a partition took place, and the land comprised in the occupancy holding was allotted to the estate formed for another cosharer, either the occupancy right revived or the purchasing cosharer could, at once, or in course of time, acquire a new right of occupancy in it. The object of the Legislature in enacting Section 22(2) was, however, to prevent the accrual of occupancy rights in land in the possession of proprietors and co-proprietors. It was based on the maxim "Nemo potest esse tenens it dominus," and to assume that, in 1907, the Legislature intended the occupancy right to remain in abeyance when it did not say so in express terms and when in 1885 it had used the unequivocal expression "cease to exist," is, I think, wholly unjustifiable. What apparently was in the mind of Ross J., when he made these observations, was the dictum of the Calcutta High Court in Jawadul Huq v. Ram Das (1997) 24 Cal. 143 (S.B.) Macpherson J. there observed:

It is not said, and the Sub-section cannot be understood to mean, that the holding shall cease to exist, but that the occupancy right, which is an incident to the holding, will cease to exist ; and there is nothing in the Sub-section inconsistent with the continuance of the holding divested of this right of occupancy which attached to it.

25. The expression right of occupancy was used for the first time by the Legislature in this country in the Bengal Rent Act, 1859, but it was an expression which had long been familiar to lawyers. Occupancy was regarded by the expounders of the Law of Nature as the origin of rights of property in land and indeed in everything which could be the subject of ownership. In English law, there was, at one time, a right of common occupancy and a right of special occupancy, which were recognized as titles to land. Prior to 1859, raiyats were divided into two categories, khudkasht raiyats who were raiyats residing in the village in which the land, they cultivated, was situated, and paikasht raiyats, who were raiyats residing, not in that village, but in some other village in the vicinity. The rights of both classes of raiyats in their land were regulated by custom, but, speaking generally, while khudkasht raiyats had a right to continue in possession of their land so long as they paid the rent for it paikasht raiyats were mere tenants at will, liable to be evicted by the landlord whenever he chose. The Rent Act of 1859 did away with this classification and substituted another, conferring a right of occupancy on the great majority of khudkasht raiyats and, also, on a considerable number of paikasht raiyats. What, in effect, the Legislature did, when it conferred this right of occupancy, was to give to large numbers of persons a statutory title to the land, of which they were in possession. A title is thus defined by Sir Edward Coke:

Titulus est justa causa posidendi id quod nostrum est : or, it is the means whereby the owner o lands hath the just possession o his property. (Black-stones Commentaries, Vol. II, page 195).

26. Macpherson J. in the passage, which I have just quoted from the decision in Jawadul Huq v. Ram Das (1997) 24 Cal. 143 (S.B.) was, I think, in error in describing the occupancy right as "an incident to the holding." It is rather the title, by which the occupancy raiyat holds his land. It is significant, as Agarwala J. pointed out in his decision in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467 that the Bengal Tenancy Act does not define a right of occupancy, but merely enacts that certain classes of persons shall have a right of occupancy, and then goes on to enumerate the incidents of that right. Now, if the title of any person in possession of land is extinguished by an act of the Legislature, what is there that remains There remains nothing but naked possession or actual occupation of the land, which is of course a decree of title in itself and may protect the occupier against persons, who have no interest in the land, but cannot and does not protect him against the rightful owner. Land, it has always to be remembered, differs from everything else, which may be the subject of ownership, in that it is immovable, and, also, in that several persons, as a rule, have separate and distinct rights in it. The true grounds, on which a cosharer landlord, purchasing an occupancy holding is entitled to remain in possession of it, is, to my mind, not that the occupancy holding continues to exist, but that, although any title, which he may have acquired by virtue of his purchase, is extinguished by operation of law, he is, as one of the co-owners, entitled to possession of the land comprised in the holding in the same way as he is entitled to possession of every other portion of the common land, which is not in the actual occupation of third persons, who, as against the entire body of co-owners, have acquired a right of possession. The only other decisions of this Court, in which the point now under discussion was considered at any length, are Kirtyanand v. Ram Lal AIR 1926 Pat. 580 which was also a decision by Das and Ross JJ. and Dhaneshwar Kuar v. Chandradhari Singh AIR 1936 Pat. 317 which was decided by Courtney-Terrell C.J., and Dhavle J.

27. To the latter decision I have already referred. There are, it is true, several other decisions, which have been referred to by my learned brother in his judgment, but, an examination of them will show that one or other of the decisions, which I have already examined, was correct, and do not contain any new argument to support the conclusion arrived at. A Full Bench of this Court in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467 has recently overruled all these decisions. The judgment of the Full Bench was, however, subjected, at the time, to some criticism by the legal profession, and it was suggested in an article in the Patna Law Times that the point might well be referred again to a larger Bench. For my own part, I entirely agree with the decision in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467 and, generally, with the reasoning by which Agarwala J. supported it in his judgment. If I have thought it necessary and desirable to examine, at some length, the earlier decisions of this Court, which have been overruled it is because my learned brother is of the opinion that the point should again be considered by a larger Bench. That is, of course, a matter for the Honble the Chief Justice to decide; but, being very definitely of the opinion that the decision in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467 was correct, it is impossible for me to endorse the suggestion made by my learned brother. As to the view, now put forward by Meredith J., I need not, I think, say anything except that the right, which an occupancy raiyat has in his holding, is not an estate in land in the sense in which that word is used in the English Common Law, as it is not derived from or carved out of an original theoretically complete proprietary right in the zamindar in the way that all interests in land in England are theoretically derived from or carved out of the fee-simple (see Phillips Land Tenures in Lower Bengal, p. 318). At this distance of time, we are in some danger of losing sight of the nature of the proprietary right, which was conferred on zamindars in Bengal and Bihar by the Permanent Settlement. Phear J., writing in 1873, when impressions were less blurred, said this :

The ryots of the village, as the combined effect of custom and legislation, have in most, if not in all, cases, some right to cultivate the ryotti land of the village, which is altogether independent of the zamindar, and which, in the case of a ryot having a right of occupation, is a right to occupy and use the soil quite irrespective of any assent or permission on the part of the zamindary... Whatever the ryot has, the zamindar has all the rest which is necessary to complete ownership of the land; the zamindars right amounts to the complete ownership of the land, subject to the occupancy ryots right, and the right of the village, if any, to the occupation and cultivation of the soil, to whatever extent these rights may in any given case reach." Bibee Sohodwa v. Smith (1974) 12 Ben L.R. 82 .

28. Under such a system, when a khudkasht or occupancy raiyat parted with his right in and possession of his land, the proprietary right of the zamindar was pro tanto enlarged. When the zamindar again settled the land or any portion of it with another khudkasht or occupancy raiyat, his proprietary interest was once more and pro tanto reduced. No doubt, in course of time, a custom of transferability grew up in certain areas, and, when and where it did, the right of the khudkasht or occupancy raiyat became what it had not been before, "a right of property or transferable possession" to use the expression which occurs in Regn. 7 of 1799, Section 25, Clause (7). Unless and until that happened, there was no room for the suggestion that a co-proprietor, who purchased an occupancy holding, was a person already owning a greater estate in land who had acquired a less estate was not intended to and did not, in fact, merge in the greater. When, however, this position arose, the Legislature, as I will show presently, intervened.

29. The plaintiffs second party rely on the concluding sentence in Sub-section (2) of Section 22, Ben. Ten. Act, as amended in 1907. The plaintiffs first-party were, they say, the transferees of certain occupancy holdings, portions of which they sublet to themselves. They were, in consequence, deemed in law to be raiyats in respect of this land and, being already settled raiyats of the village in which the land was situated, they at once acquired a right of occupancy in the land, and were not liable to be evicted by the defendants first-party. In attempting to repel this, contention, Mr. S. N. Basu, for the appellants, relied on this passage in the judgment of their Lordships of the Judicial Committee in Midnapore Zemindary Co., Ltd. v. Naresh Narayan AIR 1924 P.C. 144 :

No cosharer can, as against his cosharers, 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.

30. As I have already said, their Lordships, in making these observations, would seem to have had in mind Section 22(2) as it stood prior to 1907. They were not, however, considering at all the position of sub-lessees, such as the plaintiffs second-party are, nor were they construing or indeed at all considering Sub-section (2) of Section 22 as it now stands. Moreover, in any case, for reasons, which will appear presently, sub-lessees, prior to 1907, could not, I think, acquire a right of occupancy. This right, or the means of acquiring it, was conferred on them when the section was amended. In construing the provisions contained in the Bengal Tenancy Act, it is frequently desirable and indeed necessary to bear in mind the manner in which in Bengal and Bihar rights in land, whether of proprietors or of tenants, have gradually evolved. The khudkasht raiyat of the regulations would seem to have been a person who had been admitted to membership of the village community, and, as such, to have had certain customary rights in all land other than the sir or zirat land of the proprietor cultivated by him at any one time, which rights were denied to paikasht raiyats. In 1859, as I have just said, the distinction between khudkasht and paikasht raiyats was swept away by the Legislature and a new distinction between, raiyats having a statutory right of occupancy in their land and raiyats having no such right took its place. It seems to me clear that, u/s 6, Bengal Act, 10 of 1859, a raiyat, to whom a cosharer landlord sub-let bakasht land of which he was in exclusive possession, whether that land was originally part of an occupancy holding or not, acquired a right of occupancy in it as soon as he had cultivated or held the land for a period of twelve years. At any time within that period it may perhaps have been open to the other co-sharers to sue to recover possession of the land to the extent of their interest in the estate; but once the period had elapsed the raiyat had, merely by occupying the land and paying rent for it, acquired a right subject to the conditions laid down in the Act to retain exclusive possession of it. The period of twelve years prescribed by the Act would, it is significant, seem to have been borrowed from the law of limitation.

Both by the Hindu and Mahomedan law, as well as by the legal practice of the country twelve years had been considered sufficient to establish a right by negative prescription--that is by the absence of any claim on the part of other persons during that period,--" Per Trevor J. in the Great Rent Case (Thakooranee Dossee v. Bisheshur (1865) Beng. L.R. Sup.202 (F.B.) at p. 215) referring to Colebrookes Digest Vol. 3, p. 4.

31. In 1885, Bengal Tenancy Act introduced anew class of settled raiyats. S.C. Mitra in his Tagore Law Lectures on the Land Law of Bengal, says at p. 338:

The Bengal Tenancy Act of 1885 has made no material alteration in the law as laid down in Section 6 of Act 10 of 1859. It has, however, partially revived and brought under definite rules the rights of khud-kasht raiyats. The settled raiyat has enlarged means of acquiring occupancy right.

23. One curious and, I think, entirely unforeseen and accidental result of the replacement of Act 10 of 1859 by Act 8 of 1885 was, however, that sub-lessees in the position of the plaintiffs second-party, who had, under the earlier Act, been able to acquire a right of occupancy in land, sub-let to them by a cosharer landlord, were, under the later Act, debarred from ever acquiring such a right unless and until there was a partition and, at that partition, the land was allotted to the cosharer who had let them into possession. This was the result of the introduction in the Bengal Tenancy Act of a definition of the word raiyat and of certain other words, which had been left undefined in the regulations and also in the Bengal Rent Act and Bengal Rent Recovery Act. As to how this came about, I need not pause to explain as the matter has been dealt with very fully and clearly by Fazl Ali C.J., in his recent decision in Bibi Kaniz Fatma Vs. Sk. Hossainuddin Ahmad and Others, . Mr. S.N. Basu suggested that the words "shall be deemed to be a raiyat" in Section 22(2) should be construed as "shall be deemed to be a raiyat vis-a-vis the co-proprietor, who has sub-let the land, but not vis-a-vis the remaining co-proprietors." If this were so, and there were subsequently either a partition of the estate or a re-arrangement between the co-proprietors as to their enjoyment of the bakasht land and the land sub-let was under that partition or re-arrangement allotted to another co-proprietor, the sub-lessee would be in the position of a trespasser and be liable to ejectment. In my judgment, it is quite impossible and would be most unreasonable, to read so much, as Mr. Basu suggests should be read, into the Sub-section. I can see no reason why, having once been deemed to be a raiyat within the meaning of that word as defined in the Act which, of course, in actual fact, he is not, a sub-lessee should cease to be deemed one and should, instead, become a trespasser merely because, as a result of a subsequent partition, the co-proprietor, who sub-let the land to him, ceases to be his landlord, and another co-proprietor, by operation of law, becomes his landlord instead. The inherent difficulty in the way of putting such a construction on the Sub-section becomes all the greater when it is remembered that, from 1859 to 1885, a sub-lessee would certainly appear to have been able to acquire a right of occupancy, and, provided that he had been in possession for 12 years, was not liable to be evicted by another co-proprietor, to whose estate the land was allotted at a subsequent partition. The settlements were made by the plaintiffs first-party with the plaintiffs second-party subsequent to 1907, and it is immaterial that the occupancy holdings were acquired by the plaintiffs first-party prior to 1907. It is, I think, clear that, when the Legislature amended the Sub-section, it declared or enacted that the status or condition of a raiyat should be held by or given to all persons to whom such land might be sub-let at any time after it came into operation. If such persons were already settled raiyats of the village, they, therefore, at once acquired a right of occupancy in the land. The general principle is, I think, plain, and, in any case, there is, on this point, a direct authority of this Court in Gopi Singh v. Jagdeo Singh AIR 1927 Pat. 172 .

33. But, are the plaintiffs second-party at all entitled to invoke the protection of Section 22(2), Tenancy Act If they are not, then, on the principles laid down and for the reasons given in Kaniz Fatma v. Sk. Hosainuddin AIR 1943 Pat. 194 they cannot recover possession. On more than one occasion, Judges of the Calcutta High Court and also of this High Court have said that Section 22(2) does not apply to occupancy holdings which are not transferable without the consent of the landlord. When, however, the decisions are examined, it will, I think, be found that this expression of opinion was in the nature of an obiter dictum. In no case, moreover, were the Judges who committed themselves to it, at all considering the position of a sub-lessee, to whom a co-proprietor who had purchased an occupancy holding had sub-let the land or a portion of the land comprised in it. In Girish Chandra v. Kedar Chandra (1900) 27 Cal. 473 and in Lakhi Kant v. Balabhadra Prasad AIR 1915 Cal. 120 a co-proprietor, who had purchased a non-transferable occupancy holding, sought to resist a suit by the other co-proprietors to recover joint possession to the extent of their shares, and relied on the decision in Jawadul Huq v. Ram Das (1997) 24 Cal. 143 (S.B.). In the former case, it was said that

although under the provisions of Section 22(2) an occupancy right may be severable, it is only severable in cases in which that section applies and cannot be made severable in all cases.

34. This implied, and, in the latter case, it was expressly said, that Section 22(2) did not apply to non-transferable occupancy holdings. In my opinion, it makes no difference whether the holding is or is not transferable without the consent of the landlord. In each case the occupancy raiyat has yielded up his rights in, and made over possession of, his land to one of the co-proprietors, the land becomes the khas or bakasht land of the landlord and, subject, perhaps, to the prior adjustment of any equities that may arise between them, each one of the co-proprietors is as much entitled as any of the others to possession of every portion of the land. The decision of this Court, in which the observation was made is Lachmi Narain v. Kamsafan AIR 1929 Pat. 185 . In that case, a co-proprietor, who had purchased a non-transferable occupancy holding, sued to recover possession of it when, at a subsequent partition, it was allotted to another co-proprietor. The suit was, I think, rightly dismissed but the ground, on which it was dismissed, was not, I think, a valid ground. There are a number of other decisions of the Calcutta High Court, in which the question that arose was the interpretation of the words "but nothing in this Sub-section shall prejudicially affect the rights of any third person" which occurred in Section 22(2), as it stood originally. These were cases, in which the occupancy holding purchased by a co-proprietor, was in the possession of an under-raiyat, and, in some of them, e. g., Peary Mohun v. Badul Chandra (01) 28 Cal 205 and Pran Krishna v. Mukta Sundari (1913) 18 C.L.J. 193 it was said that the only rights, which were protected, were rights which were valid as against the landlord. These decisions may have had something to do with the construction put on the section in the other cases just cited, namely, that it did not apply to holdings which were not transferable without the consent of the landlord. But it is obviously not enough to assume that there is a lacuna in the section and that it consists in the accidental omission of the word "validly" before the word "transferred." When an occupancy raiyat in a village, in which occupancy rights were not transferable by custom, sold his holding, the transfer was a perfectly valid transfer. It was not void but merely voidable at the option of the landlord. How can it possibly be assumed that the Legislature intended this section to apply only to villages, in which the custom of transferability already existed or might, in course of time, grow up, and not to villages in which it did not. It has to be remembered that, in 1885, and even, perhaps, in 1907, the custom of transferability was not very prevalent in Bihar, although, no doubt, in a great part of Bengal, the position was otherwise. As, until 1885, the doctrine of merger did not obtain, it had, since 1859, been possible for a cosharer landlord to acquire, in some parcel of land within his estate, an interest as a raiyat, as well as an interest as a landlord.

33. This was to introduce serious complications into the tenure of landed property, and it was to stop it, that Section 22(2), Ben. Ten. Act was enacted. It is abundantly clear that, when the Legislature enacted the section in 1885, it had two objects in view; one was to debar absolutely proprietors and co-proprietors of estates from acquiring occupancy rights in any land, situated within their estates; the other was to ensure that settled raiyats should at once acquire a right of occupancy in any land other than the zerat land of the landlord, of which they were let into possession and for which they paid rent. In 1885, the Legislature failed to make clear the position of persons, to whom a co-proprietor, who had purchased an occupancy holding, sub-let the land or a portion of the land comprised in it. The ambiguity was, however, removed in 1907. I can find no reason to suppose that, in 1885, and again, in 1907, the Legislature intended Section 22(2) to be of limited local application.

36. In coming to the conclusion they did on the question as to whether Section 22(2), Tenancy Act, applied at all, the Courts below relied on two recent decisions of this Court: Naga Rai v. Buchi Rai (1937) 18 P.L.T. 173 and Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, . The question that arose in each of these cases was the construction of Section 26N, Bihar Tenancy Act. That section, however, came into operation on 10th June 1935. In this particular case, the batwara proceedings were completed in 1930 and the plaintiffs were evicted from or relinquished possession of the land in suit in 1932. Section 26N, Bihar Tenancy Act, cannot, therefore, apply, and the decisions relied on are not directly in point. There are, however, observations in the judgments which have some bearing on the matter now before us. In particular, I may refer to this passage in Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, of the report:

It has been held in a series of cases that the provision refers only to an occupancy holding which is transferable by custom and that it does not apply to a non-transferable holding. There can be no doubt, however, that it would apply to a non-transferable holding also if the cosharer landlord or permanent tenure-holder to whom the holding is transferred, can prove that the holding has been transferred to him with the consent of the other cosharers or that the latter have waived their right to object to the transfer either expressly or by doing something which may amount to a recognition of the transfer.

37. These observations were, I think, as much in the nature of obiter dicta as was the observation in Lachmi Narain v. Kamsafan AIR 1929 Pat. 185 to which I have already referred, and if I cite them it is for the purpose of showing that the latter expression of opinion which, to my mind, was erroneous, has already been doubted or at least subjected to a material qualification or reservation by other Judges of this Court. The point now at issue, namely, whether a settled raiyat, to whom a cosharer landlord, who has purchased an occupancy holding, sub-lets the land or any portion of the land comprised in the holding, at once acquires a right of occupancy in it, whether in the village, in which the holding is situated, the custom of transferability exists or not is not covered by any decided case and is res integra. That being so, its decision must depend on the language used in the section, and, for the reasons already given, I can find nothing in the section to suggest that it was not intended to apply throughout the whole of Bengal and Bihar. It must, I think, be held that the plaintiffs second-party, being settled raiyats of the village, acquired a right of occupancy in the land in suit as soon as they were let into possession of it. There is nothing in the record to show or suggest that the plaintiffs second-party are mere benamidars for the plaintiffs first-party or that the settlements, which were made with them were made in order to deceive the batwara Court or to defraud the remaining co-proprietors. There is, therefore, no reason why the plaintiffs second-party should not recover possession of the land in suit even if, at the partition, it was treated as bakasht land and allotted to the estate of the defendants first-party. In the result, then, I would dismiss the appeal so far as the plaintiffs second-party are concerned. So far, however, as the plaintiffs first-party are concerned, I would allow the appeal and dismiss their suit. In the circumstances, each party ought, I consider, to bear their own costs throughout.

Meredith J.

38. With regard to the position of the plaintiffs second-party, I am in complete agreement with my learned brother, Shearer J. I entirely agree with him, and I have nothing to add.

39. In the case of the plaintiffs first-party, however, I find myself to some extent in disagreement. Before attempting to analyse the legal position, it is, I think, advisable, first, to set out clearly the concurrent findings of fact of the Courts below. They are, in brief, that these plaintiffs hold three gandas interest in tauzi No. 1070 since 1860, or earlier. Between 1885 and 1895, they or their predecessors-in-interest acquired the suit lands, which were occupancy holdings, either by purchase or exchange. Sub-sequent to that period the Manjhaul factory came to represent the 16 annas landlords Interest, partly as thicadar with the right to make settlements and recognize tenants and partly as proprietor. In this joint capacity the factory recognized the tenancy right of the plaintiffs either by according recognition to their purchases, or by making fresh settlements with them, and on several occasions the factory sued them and realised rent from them. In the record of rights the lands were recorded partly as ghairmazrua khas and partly as bakasht in possession of the plaintiffs upon payment of rent to the maliks. Thus, the learned Munsif in the course of his judgment after remand said:

From whatever aspect J. approach the question I cannot but find that the factory had the power to settle lands and to recognize the purchasers of occupancy holdings as lessees. The other cosharer landlords or their lessee, the Manjhaul factory, had a right to ignore the acquisition of the plaintiffs and to bring a suit for joint possession, or to recognize the purchase and realise rent from them. Admittedly neither the landlords nor the factory brought any suit for joint possession. On the other hand, the factory recognized the oral purchase from Bhai Lal by granting the patta (Ex. 12-a) and brought rent suits for the recovery of the rent as is evidenced by the rent decrees (Exs. 6A and 6F). It also brought rent suits for the recovery of the rent in respect of the lands purchased and taken in exchange from Jhakhar as is evidenced by Exs. 6 and 6G. Now it is submitted by the defendants learned pleader that assuming that these rent suits were in respect of the lands in suit, it must be held that they were for recovery of the compensation, and not for the recovery of rent. A perusal of the contents of the decrees would clearly show that the plaintiffs did not claim compensation but claimed rent in accordance with the pattas.... These facts will show that the purchase of the plaintiffs ancestors was consented to by the lessee as also by the proprietors of tauzi Nos. 1077 and 1103 with whom we are mainly concerned.... They are coming on in possession of the land for several 12 years to the knowledge of the proprietors, and as no suit was brought for joint possession by the other co-proprietors within 12 years of their purchase, the plaintiffs have acquired the limited interest of a tenant.

40. Similarly, the learned Subordinate Judge in his judgment says:

So the only inference that can be drawn is that the plaintiffs and their ancestors, who were admittedly in cultivating possession of the other khata, held both the khatas in the same capacity treating the land as raiyati and that the khatian entries were accordingly made to the full knowledge of the Manjhaul factory and the proprietors who raised no objection but kept silent presumably accepting the correctness of the khatian entries.... Undisputedly, the Manjhaul factory brought several rent suits one after the other, and the learned Munsif, who tried the suit first, has rightly pointed out after taking a good deal of pains that the suit land is covered by the decree lands.... Taking the entire evidence into consideration, I agree with the Court below and hold that the Manjhoul factory had full powers to settle lands and to recognize purchase of raiyati lands.... So the position is that the acquisition of land by purchase, settlement and exchange by the plaintiffs or their ancestors is in substance based on the consent of the cosharer proprietors.

41. The difficulty in this case is caused by the Full Bench decision of this Court in Sunder Mall v. Lachhm AIR 1940 Pat. 467 i Tewari, Sunder Mall v. Lachhmi Tewari . In that decision it was held that where co-proprietors purchased raiyati holdings prior to the amendment of Section 22, Ben. Ten. Act, in 1907, the purchase must be held to be for the benefit of all the proprietors and to be merely an acquisition to the bakasht of the estate, the purchased lands by the purchase immediately becoming bakasht lands. True, upon the principle of stare decisis the Full Bench thought that the right to hold these lands on behalf of all the proprietors should be held to continue up to, the time of partition, but since it was no real right the purchasers could not hold the land as tenants after the partition.

That ruling is, no doubt, binding upon this Bench, and as my learned brothers view is in accord with it, upon the question which falls for decision before us, I feel that I ought not, upon the present occasion at least, to press my own point of view, and ask for the matter to be reopened before a larger Bench. Nevertheless, in justice to myself, and in order to make my own position clear, I wish to sound a note of dissent. The decision was based principally upon three considerations : first, the fact that Section 22(2) as it stood before 1907, said that:

If the occupancy right is transferred to a co-pro-prietor, it shall cease to exist,

and, secondly, the observations of the Privy Council in Midnapore Zamindari Co., Ltd. v. Naresh Narayan Roy, Midnapore Zemindary Co., Ltd. v. Naresh Narayan AIR 1924 P.C. 144 where their Lordships said:

Even if the Midnapore Company purchased any jote rights in lands held in common by the cosharer, such a purchase would, in law, be held to have been a purchase for the benefit of all the cosharers, and the jote rights so purchased would by the purchase be extinguished.

Thirdly, it was observed in the Full Bench case that the status of a purchaser could not be that of a tenant under the other co-proprietors because to quote Agarwala J.:

If A, B and C are co-proprietors of an estate, I do not understand how one of them who is in possession of a part of the estate, can be viewed as a tenant under the other two, for the land belongs to all the three co-proprietors and not merely to the other two. Nor in my opinion, can he be viewed as occupying the status of a tenant under himself and his co-proprietors, for that involves the purchaser being a tenant under himself and the other co-proprietors as landlords. The law does not recognize a person as a tenant of himself.

42. With the greatest respect, in my view, the original Section 22(2) did no more than preserve the ordinary rights of co-tenants under the general law of co-tenancy which were stated by the Privy Council in the passage above quoted. That law was that the purchasing co-tenant must be held to have purchased for the benefit of all the co-tenants, and the latter had a right to insist upon joint possession upon paying their quota of the purchase price within a reasonable time. Thus, to quote from Freeman on Co-Tenancy, p. 232, para. 154, who is speaking of purchase of an adverse title, but the principle is the same:

The purchase is, notwithstanding his designs to the contrary, for the common benefit of all the co-tenants. The legal title acquired by him is held in trust for the others, if they choose, within a reasonable time, to claim the benefit o the purchase, by contributing or offering to contribute their proportion of the purchase money.

Now had the occupancy right been allowed to persist it would obviously have derogated from this right of the co-owners. That it was not intended that this should be so is, I think, all that can be derived from Section 22(2).

43. Then with regard to the observation of the Privy Council, it seems to me that their Lordships were only stating the legal position as embodied in the passage from Freeman which I have just quoted. There is nothing at all in their observation to suggest that the purchaser would not have the right to hold the land in trust pending the decision of the other co-owners whether to contribute and take joint possession, or to recognize the purchaser as a tenant of the land. To quote further from Freeman, p. 233, paragraph 156:

The purchase made by a co-tenant of an outstanding title or incumbrance is not void, nor does the interest so acquired by him, or any part of it by operation of law, vests in his co-tenants. They may not wish to share in the benefits of his purchase; for, in their judgment, the title purchased by him may not be paramount to that before held in common. The law gives them a privilege which they may assert. This privilege consists in the right to obtain a conveyance of the title bought in, upon their paying their share of tin; price at which it was bought. The privilege may ho waived by an express refusal to reimburse the co-tenant for his outlay, or by such a course of action as necessarily implies such a refusal. The right of a co-tenant to share in the benefit of a purchase of an outstanding claim, is always dependent on his having, within a reasonable time, elected to bear his portion of the expense necessarily incurred in the acquisition of the claim.

44. The observations of the Privy Council in the Midnapore Zamindari case (24) 11 AIR 1924 P.C. 144 are entirely consistent with this position, and, in my judgment, form no support at all for the view that by purchase the purchaser acquires no rights at all for himself. They arc entirely consistent with the view that the purchaser does acquire a limited right by his purchase, namely, a lien upon the land for contribution, and an absolute right to hold in the event of the refusal, either express or implied, to contribute.

45. Lastly, with regard to the third point, with the greatest respect, I must say it is not correct in law to state that one co-owner cannot become a tenant of the other co-owners. The law is just the contrary. To quote again from Freeman, page 242, paragraph 164:

The co-tenants ace at liberty to contract with one another, in. relation to all matters, including the subject-matter of the tenancy. One may lease his moiety to the other ; and upon such leasing, the parties bear to each other the relations, are subject to the obligations, and entitled to the rights, of landlord and tenant.

46. Again quoting from Freeman, page 349, paragraph 263:

If an outstanding paramount title be purchased by one co-tenant, and the others fail or refuse to pay their share of the purchase price, the purchaser may indemnify himself by asserting the paramount title which he has so acquired.

Moreover, the principle that a co-owner may be a tenant under himself and the other co-owners is definitely recognized in the Bengal Tenancy Act itself, Section 22. The explanation to Sub-section (3) of Section 22 runs:

A person having a right of occupancy in land does not lose it by subsequently becoming jointly interested in the land as proprietor or permanent tenure-holder, or by subsequently holding the land in ijara or farm.

47. Thus, in the circumstances contemplated a person may be an occupancy tenant of himself and his co-owners. Indeed, I see no difficulty in principle in this position, since the entire body of co-owners is obviously quite a distinct entity from any one of them alone.

The legal position seems to me to be that pending acceptance or rejection by the co-owners of the right to contribute and share in the benefit, the purchasing co-owner is merely holding the land in trust for all the owners, and during that period it may be that he is not a tenant. To that extent the decision of the Full Bench is, I think, correct. I agree that, having regard to the pre-1907 provisions of Section 22 and the general law as stated by the Privy Council in the Midnapore Zamindari case (24) 11 AIR 1924 P.C. 144 a co-proprietor purchasing before 1907 did not thereby become a tenant of his co-proprietors. On the contrary, his purchase gave him merely an equitable lien on the land. But, in my opinion, upon his recognition as a tenant by his co-proprietors, either expressly or by necessary implication or upon his taking a fresh settlement from them, a new tenancy is created. I can find nothing at all either in the Act or in the general law or in the Privy Council decision referred to, inconsistent with this view. The nature of the tenancy, like the tenancy created immediately on purchase under the new section, may be anomalous. Its holder may not be exactly a tenure-holder or exactly a raiyat. But the anomaly is the creation of the statute. Upon the point of recognition it must not be forgotten that in this country a tenancy is undoubtedly created by use, occupation and recognition. If a man cultivates the zamindars lands and the zamindar lets him, there is an implied contract between them, creating the relationship of landlord and tenant ; Nitya nanda Ghose v. Krishna Kishore (1864) W.R. (Sup.) 82 quoted with approval in Azim Sirdar v. Ram Lall 25 Cal. 324 . This has been consistently followed by the Courts. Upon the question of proof of title by evidence of recognition the decision of the Privy Council in AIR 1932 264 (Privy Council) may also usefully be referred to.

48. Where there is a right in the purchaser to hold the land subject to the payment of rent to his co-proprietors, if that is not the relationship of landlord and tenant I do not know what it is. In the Tenancy Act "tenant" is defined as "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." "Rent" is defined as "whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by a tenant." It will include money recoverable as if it were rent (Sections 53 to 67, 72 to 75, Chaps. XII and XIII).

The argument that the "peculiar status" cannot be a tenancy because that would be introducing a new class of tenant unknown to the Tenancy Act, who would not be a raiyat and also in some cases at least would not exactly satisfy the definition of "tenure-holder" in Section 5 of the Act, is, in my opinion, unsound, because there is Privy Council authority for the view that the enumeration of tenants in Section 4 of the Act, is not exhaustive, and there may be an agricultural tenant in this country who falls under none of the classes defined therein.

I cannot do better than quote from the judgments of Chapman and Jwala Prasad JJ., in Janki Singh Vs. Mahant Jagan Nath Das and Others, . Chapman J. in the course of his judgment made the following observations:

49. In my opinion a tenant in zirait is prima facie not a raiyat (1) because he has never been so regarded, and (2) because lie neither has rights of occupancy nor has been vested with the new non-occupancy rights... If, however, it is thought desirable to classify tenants in zirait they may be called tenure-holders as was done by the Calcutta High Court in Section A. No. 2626 of 1904 ... It should be noted in this connexion that the classification in Sections 4 and 5 was not intended to be scientific or precise. For instance, the classification does not include the case of a cosharer holding land subject to payment to his co-proprietor u/s 22. There are several other kinds of tenants not easily placed under any of the classes. If the classification be treated as a series of precise definitions the Act will be misinterpreted. As an example I may refer to the case in Bhutnath v. Surendra Nath 13 C.W.N. 1025. in which by the application of precession the result was obtained by one of the Judges that a raiyati at fixed rates is not a protected interest, a conclusion which I am entirely unable to accept. It is obvious that in order to render the Act intelligible Sections 4 and 5 must be applied with a reasonable amount of elasticity and this is apparent from the use of the word primarily and the reference to custom in Section 5.

50. Jwala Prasad J. in the course of his judgment said:

The classification of tenants in Section 4 is not exhaustive. As an instance: may be mentioned the class of tenants known as settled raiyats u/s 20... A Court is required to have regard to custom in determining whether a person is a raiyat or not (Section 5 of the Act). No custom is more certain than that a tenant in zerait is not a raiyat. This custom has been recognized in every text-book and in a multitude of enactments and decisions : vide also Sir Courtney Ilberts speech on the Tenancy Act. The Bengal Tenancy Act does not purport to be a complete and exhaustive Code even in respect of t11 C.W.N. 983he law of landlord and tenant, Kripasindhu v. Ananda Sundari Debi (F. B.). A person holding under a lease for a term of years the zerait land is not a raiyat and will not be governed by the Bengal Tenancy Act but by general law.

It is true that these were minority judgments. The other three Judges who heard the case held otherwise. But the Privy Council affirmed the view of these two Judges, and rejected that of the majority: vide Jagarnath Das v. Janki Singh AIR (1922) P.C 9. 142.

Section 22(2) as amended in 1907 gives the purchaser something more than he had under the general law: it takes in terms nothing away. It gives an indefeasible right to hold the purchased land subject to the payment to his co-proprietors of the shares of the rent from time to time payable to them. In other words, it takes away the right of the co-owners to contribute and share in the benefit of the purchase. It seems to me that under the amended section a tenancy interest is created in the purchaser from the time of the purchase.

51. The view which I am putting forward seems to me, moreover, to be in accord with that which had become gradually evolved and settled by a long line of decisions in Emamuddin Vs. Saiyid Mohammad Rashidul Huq and Others, is Court, namely, Emamuddin v. Mohammad Rashidul Huq . Ram Prasad v. Munshi Gopal Chdnd AIR 1921 Pat. 341 . Nandkishore Singh v. Mathura Sahu AIR 1922 Pat. 193 . Basudeo Narain v. Radha Kishun AIR 1922 Pat. 62 . Qyamuddin Khan v. Ramyad Singh AIR 1922 Pat. 354 . Parmeshwar Singh v. Mt. Sureba Kuer (25) 12 AIR 1925 Pat. 53.9. Lala Bambahadur Lal and Others Vs. Mt. Gungta Kuer, . Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 263 . Kirtya Nand Sinha Bahadur v. Ram Lal Dube AIR 1926 Pat. 580 . Gopi Singh v. Jagdeo Singh AIR 1927 Pat. 172 . Lalji Singh and Others Vs. Lakshmi Narayan Singh, . Badlu Pathak v. Sibram Singh AIR 1928 Pat. 234 . Raghunandan Prasad v. Lalit Mohan AIR 1934 Pat. 542 . Srimati Babui Dhaneshwar Kuar v. Rai Bahadur Chandradhari A.I.R, 1936 Pat. 317 . Naga Rai v. Buchi Rai (1937) P.W.N. 739 . Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, and Inder Chandra and Others Vs. Shri Radha Krishna Ji and Another, until it was upset by the Full Bench in Sunder Mall and Others Vs. Lachhmi Tewari and Others, and several of the important decisions in this line have not been considered by the Full Bench.

52. In Emamuddin Vs. Saiyid Mohammad Rashidul Huq and Others, . Roe and Coutts JJ. said:

We may assume, for the purposes of the case, that the plaintiffs story, as given in the plaint, is the correct story, that he is a cosharer proprietor and acquired these lands in the manner contemplated by Section 22, Ben. Ten. Act; but he has also let out the land in the manner contemplated by Section 22(2), and, that being so, the person to whom he has let out the land becomes a raiyat upon the land, and as a raiyat, whether he has a right of occupancy or not, he cannot be ejected except upon conditions prescribed in the Bengal Tenancy Act, none of which has been fulfilled. It is, however, contended by Mr. Kulwant Sahay that a cosharer proprietor of a village is not a third person within the meaning of Section 22(2). I for my own part fail to appreciate this distinction. It is a mere accident that the defendant in this case holds a small share in the village. He was inducted on to the land as a tenant and not as a proprietor, and as a person intending to cultivate the land with his own ploughs. To my mind he is a third person within the meaning of the section.

53. This decision is therefore authority for the view that the co-proprietors may have one of their number as a tenant under them, provided he is inducted as such. It will surely govern the case where the co-proprietors give one of their number, who has purchased an occupancy holding, a fresh settlement. It has not been considered by the Full Bench.

54. In Rai Bahadur Bisseswar Lal Halubasia and Others Vs. Rup Kishore Chaubay and Others, . JWala Prasad J., said:

In the case of Babu Ram Dhony v. Upendra Nath Koley AIR 1918 Cal. 968 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.

55. In Basudeo Narain v. Radha Kishun AIR 1922 Pat. 62 a case not considered by the Full Bench, Das and Adami JJ. held that when a cosharer purchases the holding of an occupancy raiyat, and upon a Collectorate partition the holding is allotted to the takhta of another cosharer, the tenancy right continues and the holding does not cease to exist.

56. Parmeshwar Singh v. Mt. Sureba Kuar AIR (1925) Pat.12 53.9 (Dawson-Miller C.J. and Macpherson J.) was a case where the plaintiff, a co-proprietor, had purchased a raiyati holding in 1866, not on behalf of his cosharer but for himself, and it was held that there was no merger upon the purchase. This case is an indication of what the law was in this country prior to the enactment of the Tenancy Act.

57. In Bambahadur Lal v. Gungra Kuer A.I.R.(1925) Pat. 547 . Kulwant Sahay J. said:

In my opinion the status of a cosharer landlord purchasing an occupancy holding is not the status of a raiyat, but a peculiar status created by Section 22(2)... the status created is a peculiar status which attaches to the cosharer so long as he remains a cosharer.

58. In Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 263 Ross J., sitting with Das J., again described the status as a peculiar status which attached to the cosharer so long as he remained a cosharer.

In Kirtya Nand Sinha Bahadur v. Ram Lal Dube AIR 1926 Pat. 580 another case not considered by the Full Bench, Ross J., again sitting with Das J., said:

It is important to observe the exact language of Section 22(2). It is not enacted that if the transferee sublets the land to a third person, such person shall be a tenure-holder or a raiyat, as the case may be, in respect of the land, but that such person shall be deemed to be a tenure-holder or a raiyat ; that is to say, the section itself recognizes the relationship as artificial and, by implication suggests that, by making such a settlement, the transferee is not a landlord, but that the peculiar status conferred upon him by the section as held in Bambahadur Lal v. Gungra Kuer AIR 1925 Pat. 547 still continues notwithstanding the settlement. Nor is it apparent on principle why the interest of the transferee cosharer should be affected merely by his making a settlement with a tenant. It has been hold in many decisions in this Court that he is entitled to hold the land which he has acquired alter partition... The position is certainly anomalous; but the anomaly is the creation of Section 22(2).

59. In Gopi Singh v. Jagdeo Singh AIR 1927 Pat. 172 also not noticed by the Full Bench, Dawson-Miller C.J., sitting with Foster J., said:

The question then arises whether by the transfer of their proprietary interest to other cosharers the plaintiffs lost their tenancy right in the land. If one regards the rights of the parties as governed by the Bengal Tenancy Act, as amended in 1907, then the interest of the plaintiffs, being a peculiar tenancy right of a co-proprietor, as pointed out in the judgment of Kulwant Sahay J., in Bambahadur Lai v. Gungra Kuer AIR 1925 Pat. 547 would pass to the purchasers on transfer of the proprietary right. The purchasers, however, allowed the plaintiffs to remain in possession as cultivators by an arrangement come to at the time of the transfer. The transaction was, in my opinion, tantamount to a sub-lease within the meaning of Section 22(2), Ben. Ten. Act, and the plaintiffs thereupon became raiyats of the holding.

I emphasize the words "peculiar tenancy right of a co-proprietor," which were used by the learned Chief Justice.

60. In Lalji Singh v. Lakshami Narayan Singh AIR 1927 Pat. 32 . Macpherson J. sitting with Jwala Prasad J. (at p. 93), speaking of the interest referred to in Section 22(2), Ben. Ten. Act, said:

Such an interest has in several recent decisions of this Court been held to entitle the holder thereof to retain possession of the land even when on partition it has been allotted to the patti of another proprietor, subject of course to payment of the rent of the anomalous tenancy to the new sole landlord, and though personally I entertain doubt as to the correctness of that view, at least in all cases, it is binding, on this Bench,

I cite this passage because the learned Judge has referred to the peculiar interest in question as "an anomalous tenancy". This case also is not noticed by the Full Bench.

Badlu Pathah v. Sibram Singh AIR 1928 Pat. 234 (Dawson-Miller C.J. and Adami J.) is another case where the peculiar interest conferred by Sub-section (2), Section 22, was referred to, and it was held that a co-proprietor purchaser holding this interest might transfer his right so acquired to a third person who thereby becomes a raiyat.

61. In Raghunandan Prasad Singh v. Lalit Mohan, Ghosh AIR 1934 Pat. 542 Wort j. held that apart from Sections 38 and 52, Ben. Ten. Act, a cosharer landlord who is in possession of a part of the raiyati land, a greater part of which is not capable of cultivation, is entitled to remission or reduction of rent.

62. In (Babui) Dhaneshwari Kuar Vs. Chandradhari Singh and Another, Courtney-Terrell C.J. and Dhavle J. held that Section 22, Clause (2), Ben. Ten. Act, does entitle a co-proprietor to hold the raiyati lands purchased, by him in rent executions subject to the payment of rent as mentioned in Clause (2) of Section 22 after he has ceased to be a co-proprietor by reason of partition. It was observed that undue stress must not be laid on the word "co-proprietors" occurring in Sub-section (2) of this section. Their Lordships said:

It is only as long as there are others interested in the land as co-proprietors that it is necessary to deal specially with the purchasing cosharers right to hold the land. The partition does not put an end to that right or make a present of it to the co-proprietors who purchased nothing. What is really available for partition is not the land itself but the rent that would have been paid for the land by the occupancy raiyats whose place has now been taken by the purchasing co-proprietor.

This case also has not been noticed by the Full Bench.

Naga Rai v. Buchi Rai (1937) P.W.N. 739. is a case where Wort J. held that on partition the rights of the purchasing cosharer would not be put an end to. He said:

The question of whether the batwara proceedings conferred any right on the defendants which they had not before is concluded by the decision of this Court in Surajdeo Narayan Singh v. Pachh Narayan Singh AIR 1917 Pat. 635. I believe there is a later decision, but the authority of the case to which I. have referred has never been questioned nor has the decision been overruled, and therefore it is binding upon me... I have already stated and repeat that the decision in Surajdeo Narayan Singh v. Pachh Narayan Singh AIR 1917 Pat. 635 decides that the batwara proceedings in no way increase the right of the plaintiff.

63. This decision was affirmed by Courtney-Terrell C.J. and James J. in Letters Patent appeal. It is also not noticed by the Full Bench.

Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, is an interesting case where a cosharer mukarraridar, after purchasing occupancy holdings, inducted tenants on the lands and realized higher rents than those which used to be paid by the occupancy tenants from whom purchases were made. The other cosharer landlord claimed his share in the higher rents so realized. But it was held by Fazl Ali J. (now Sir Fazl Ali C.J.) and Dhavle J. that on the proper construction of Section 22(2) of the Act the rent referred to is the rent of the original occupancy holding, and not the rent payable in respect of the tenancy that might be created afterwards by the purchasing cosharer. Fazl Ali J. said:

There is nothing in the Act to suggest that the Legislature could have intended that the position of the cosharer landlord when he acquired a raiyati holding should be worse than that of a third person acquiring such a holding.

His Lordship also said:

The effect of a series of decisions of this Court as well as of the Calcutta High Court is that upon a co-proprietor purchasing an occupancy holding, the holding does not cease to exist but the right of occupancy does.

64. Later on his Lordship says:

In my opinion if Sub-section (2) is read along with the illustration which follows it, it will be tolerably clear that the word rent used in this Sub-section means the rent which was payable in respect of the holding when it was transferred.... This view is in consonance with the object of the section which was to place the purchasing cosharer more or less on the same footing as a third person acquiring an occupancy holding by transfer.

Dhavle J. in a separate judgment said:

The amendment of 1907 (of Sub-section (1)) provided that the transferee is to have no right to hold the land as a tenant and is to hold it as a proprietor or permanent tenure-holder as the case may be, with out prejudice to the right of any third person. The position of a cosharcr landlord or permanent tenure-holder dealt with in Clause (2) was different as (even though the occupancy right ceased) a tenancy was still possible under the other proprietors or permanent tenure-holders.... The status of a cosharer transferee under this clause has been discussed in many reported decisions, where it has been described as peculiar.

65. This case also has not been fully noticed by the Full Bench. There is a clear statement that a tenancy under the other proprietors is possible for the purchasing proprietor; and not only that but the finding with regard to the rent payable seems to me clearly to amount to this that it is a portion of the rent of the holding, and not compensation for use and occupation, which would, of course, have to be determined upon quite different principles.

Inder Chanda v. Shri Radha Krishnaji AIR 1941 Pat. 24 is a case where it was held that the thicadar of the cosharer landlord in exclusive possession of the land by mutual agreement was entitled in the ordinary course of management to settle tenants on this land and the statutory rights which accrued to such tenants by operation of the Tenancy Act cannot be affected by a subsequent partition between the owners of the estate. That is not the point now before us, but this case is important because Agarwala J. sitting with Rowland J. held further that even if the tenants so inducted were themselves sharers in the proprietary right it would make no difference because they would still be entitled (after partition) by reason of Section 22, Bihar Tenancy Act, to hold the land as such part proprietors on the conditions mentioned in that section. This case also has not been noticed in the Full Bench decision.

66. It is true that most of the cases I have examined relate to the position under the amended section, but in principle I can see no distinction between the position acquired by the purchasing co-sharer directly upon purchase under the amended section, and the position acquired by him under the old section upon recognition of his subordinate interest by his cosharers, or upon his being given a fresh settlement by them as their tenant.

If it once be conceded that the purchasing co-owner acquires some right by his purchase, even under the law as it stood before 1907, and upon general principles, I think, it must be conceded, then I do not understand how that right can be put an end to merely by partition. Partition merely distributes rights, but cannot destroy them. This proposition is true whether the right be called a tenancy interest or a lien upon the land : it matters not.

67. Can it possibly be held that the plaintiffs first party had no special right at the time of partition If there ever was a case where the existence of the right is clear, it is the present case. The plaintiffs had held these lands as tenants upon payment of rent for an uninterrupted period of some thirty years before the partition. There had been contracts with them, express or implied, by the 16 annas proprietors. In some cases the lands had been actually settled with them in fresh tenancy by or on behalf of the 16 annas proprietors. In view of the general law these settlements were perfectly good and valid. They had been sued for rent, the suits had been decreed, and they had paid it. Their interest had been recognized and recorded by the settlement authorities. The right of the co-owners to participate in the purchases had been expressly given up or had certainly lapsed by efflux of time. It would be most unjust in a case like this that the plaintiffs after this long period should be turned out without any compensation whatever. I should be most reluctant to hold that that is the law, and, in my considered judgment, it is not the law. There is nothing in the Partition Act enabling the revenue authorities to put an end to rights like these.

Moreover, under the general law of partition it is clear that partition proceedings do not put an end to such rights quoting once more from Freeman, page 683, para. 512:

A tenant-in-common who has removed an in-cumbrance from the common property is entitled to contribution from his co-tenants. To secure such contribution, a Court of equity, acting in a suit for partition, in favour of the co-tenant removing the incumbrance, will enforce an equitable lien of the same character with that which lie has removed.

68. If, as in the present case, the partition authorities have not recognized the rights of the purchaser, there is nothing in my judgment, to prevent him from coming to the civil Courts to secure redress. It is quite true, here I agree with my learned brother, Shearer J. that Section 119, Estates Partition Act, would prevent the plaintiffs from securing relief as proprietors. They cannot now as proprietors come to the civil Court, ask that the partition should be re-opened, and they should be compensated.

69. But the right which has been taken from them was, in my judgment, at the stage when the partition took place, not a mere right to insist upon compensation but a right to hold the land under their co-proprietors, that is to say, a tenancy right, a right in a different capacity. The plaintiffs ask for relief from us not in their capacity as co-proprietors, but in their capacity as tenants of the estate who have been dispossessed. They ask that they should be recognized as tenants of the defendants first-party to whose takhta these lands have fallen upon partition. I see no reason why the civil Courts should not give effect to that prayer. It is not going behind the partition, though it may indirectly affect it. But even so, there is no estoppel upon the plaintiffs as tenants. As such they are in no way bound by the decision of the revenue authorities. Section 119 has no application to a case where the plaintiffs are not asserting any rights as proprietors, but are claiming a tenancy right; Subedar Rai v. Rambilas Rai AIR 1.926 Pat. 162 : 5 Pat. 8. It is merely an accident that the persons setting up this claim are also proprietors : Janki Nath Chowdhury v. Kali Narain Roy Chowdhury (10) 37 Cal. 662 . In my judgment, both in equity and in law the plaintiffs first-party should succeed.

70. That is the view taken by both the Courts below, and-in my personal opinion it is the correct view. I am, however, bound by the decision of the Full Bench in Sunder Mall v. Lachhmi Tewari Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 263 and as my learned brother does not join with me in asking for reference to a larger Bench, I agree to the order proposed by him.