Edward Chamier, C.J.These appeals arise out of two suits brought by the appellants for possession of 8 bighas, 19 cottahs, and 7 dhurs and 1 bigha, 15 cottahs and 10 dhurs, respectively. Up to 1911 the appellants had a share in a large mahal called Sukrashi. At a partition which took place in that year a separate patti in two villages of the old mahal was allotted to the appellants in lieu of their joint share. In the old mahal Respondents 2nd party had two occupancy holdings, viz., one of 48 bighas odd (Khata No. 266) and the other of 30 bighas odd (Khata No. 2.) At a partition in 1911, 8 bighas, 19 cottahs, 7 dhurs (the land claimed in Second Appeal No. 1236) of the holding in Khata No. 266 and 1 bigha, 15 cottahs, 10 dhurs, (the land claimed in Second Appeal No. 2196) of the holding in Khata No. 2 were allotted to the appellants patti. In 1907 respondnets 2nd party by several deeds sold the lands now in suit to respondents 1st party and put them in possession thereof.

2. The appellants allege that by the transfers of 1907 and by other deeds respondents 2nd party have parted with their entire interest in both the original holdings. Respondents 2nd party say that they still hold 2 bighas odd of old Khata No. 266 and 1 bigha odd of old Khata No. 2. The Courts below have recorded no findings on this disputed question of fact but there appears to be no evidence on the record to support the appellants allegation. It must be taken that the allegation has not been proved.

3. The appellants maintain that the holdings were not transferable and they contend that they are entitled to eject respondents 1st party from those portions of the old mahal which have been assigned to the appellants patti. The respondents pleaded that there was a usage of transferability in the mahal and that the transfers now in question had been recognized by the maliks.

4. The questions argued before us were:

(1) Whether the transfer of the land in question in Second Appeal No. 2196 was recognized by the landlords;

(2) whether the usage of transferability was established; and

(3) whether the appellants are entitled to succeed even if the usage has been established.

5. On the first question it is sufficient to say that it is found by the Courts below that rent was accepted by the common manager from the transferee of the land and that the transferee was recognized by one of the maliks who by arrangement with his co-sharers was entitled to collect the entire rent of the holding. It is clear that there was evidence on which it might be held that the transfer was recognized by the maliks. This disposes of Second Appeal No. 2196.

6. As there is no finding that the transfers in Second Appeal No. 1236 were recognized the other questions must be considered.

7. On the issue of transferability a mass of evidence was produced on both sides. The evidence produced by the respondents if believed was amply sufficient to justify a finding that the usage was proved.

8. On the third question Sir Ali Imam contended that even if the usage of trans ferability has been established it cannot be held to justify what has taken place in the present case, namely, the transfer of different parts of a holding to different people, for the landlords were not bound to recognize any division of the holding. He contended also that even if respondents 2nd party are still in possession of a part of the original holding, the appellants are entitled to eject respondents 1st party from that part of the holding which has been allotted to the appellants patti. His argument was that the reason for the decision of the Full Bench in Dayamayi v. Ananda Mahan Rai 27 Ind. Cas. 61 ; 42 C. 172 ; 18 C.W.N. 971 ; 20 C.L.J. 52 that a transfer of a part of a holding without the landlords consent does not entitle the landlord to enter upon the holding unless there has been an abandonment, relinquishment or repudiation by the tenant, is that the landlord can disregard the transferee and sue the tenant for the rent of the entire holding, whereas that has been rendered impossible in the present case by the partition. In the present case it has been found only that there is an established usage by which occupancy tenants may transfer their holdings. It has neither been pleaded nor proved that an occupancy tenant is entitled to transfer his holding or the greater part of it piecemeal and call upon the landlord to recognize the different transferees or recognize any division of the holding. But the question is not whether the appellants are bound to recognize respondents 1 st party as their tenants but whether the appellants are entitled to enter upon that part of the holding which has been allotted to them. Upon the facts as found and according to the decision in Dayamoyi v. Ananda Mohan Ray 27 Ind. Cas. 61 ; 42 C. 172 ; 18 C.W.N. 971 ; 20 C.L.J. 52, the landlords of the joint mahal could not before the partition have entered upon the land held by respondents 1st party. By the partition the rights of the whole body of landlords in respect of the land held by respondents 1st party have become vested in the appellants alone.

9. The first reason suggested for holding that the appellants are entitled to enter upon the land, although the joint landlords ware not entitled to do so before the partition, is that the appellants are not entitled to sue the respondents 2nd party for the rent of that part of the holding which has been retained by them. It is no doubt true that the appellants cannot sue respondents 2nd party for the rent of the land retained by them, but that is because under the partition the appellants have no interest in that part of the holding The rent of the holding has presumably been apportioned u/s 81 of the Estates Partition Act and the appellants are entitled to sue only for the rent of the land allotted to them. If they are not bound to recognize respondents 1st party as their tenants they can sue respondents 2nd party for the rent. The present position regarding the rent appears to me to be no reason for holding that the appellants have acquired by the partition a right to enter upon the land, a right which the joint landlords did not possess before the partition.

10. Next it was suggested that in consequence of the partition the appellants are entitled to treat the transfer of that part of the holding which has been allotted to them as a transfer of an entire holding, and to say that as the holding has been abandoned by respondents 2nd party they (the appellants) are entitled to possession of it as against the transferees. In Radha Kishun v. Bhagwat Prasad 38 Ind. Cas. 72 ; 1 P.L.W. 19. Second Appeal No. 2564 of 1914 (unreported) a similar contention was advanced but was rejected by this Bench. Having heard further arguments on the point I am of opinion that the contention was rightly rejected. On principle it seems to me that a partition of the landlords interests ought not to be held to confer upon the holders of one of the new mahals or pattis rights against tenants or their transferees which the landlords did not possess before the partition and which do not necessarily result from the partition. Nor does it appear to me to be possible to hold that that partition between the appellants and their co-sharers had the same effect as a relinquishment or abandonment by respondents 2nd party would have had. The latter could not have prevented the partition. Bat even if the transfer of part of an original holding could be treated as a transfer of an entire holding in consequence of a subsequent partition and the division of the original holding into several new holdings it would not avail the present appellants, for on the findings the transfer of an entire holding is justified by the usage.

11. The finding in favour of the usage set up by the respondents is fatal to the appellants case.

12. I would dismiss both these appeals with costs.

Sharf-ud-din, J.

13. I agree.