Agarwala, J.This appeal is by the plaintiffs from a decision of the Subordinate Judge of Arrah confirming a decision of the Munsif of Sasaram.

2. The appeal arises out of a suit for a declaration of plaintiffs title to 19 acres of land in plot No. 257 of khata No. 99 in mouza Bhabua, tauzi No. 12553 and for recovery of possession. The plaintiffs allege that this is their bakasht while the defendant claims it as raiyati. Formerly the land in dispute formed part of an estate the co-owners of which were in separate possession of parts of the estate. The land with which we are concerned was in the possession of one Gajadhar Prasad. Gajadhar Prasad gave a thika of the land tit which he was thus in possession to one Mangal Prasad. The predecessor of the defendant, who was a settled raiyat of the village, was inducted on to the disputed land by Mangal Prasad and, it is claimed, thus acquired occupancy rights in it. As a result of collectorate partition among the co-owners of the estate the disputed land has now fallen into the patti of the plaintiffs who claim that by virtue of Section 99, Estates Partition Act, they are entitled to possession. The Courts below have found that the defendants predecessor-in-title was a settled raiyat of the village and that the settlement of the disputed land with him was bona fide and that consequently the-defendant has occupancy rights.

3. The question which arises in this appeal also arose in Rajendra Narayan Vs. Hargobind Choudhury and Another, which was decided by a Bench of which I was a member, on 17th October 1939. In the judgment of that appeal the case law on the subject has-been thoroughly discussed by Meredith J. There also the question was whether a person settled on land by a cosharer in exclusive possession of a portion of it by arrangement with the other cosharers can acquire occupancy rights in the land. The answer to this question was held to depend upon whether the person settled on the land became a tenant of all the cosharers or whether he only became a tenant of the person who settled the land with him. The decision was

that where it can be held that the cosharer had an implied authority, and does represent the entire body of landlords by virtue of that implied authority, then the settlement by him is binding upon all. A tenancy interest is created under the entire body of landlords, and nothing in Section 99, Estates Partition Act, can prevent the accrual of occupancy rights in appropriate cases, which will be effective even after partition.

4. As to whether a cosharer who has been placed in sole possession for convenience by mutual arrangement among the cosharers has an. implied authority to settle tenants on the land who, by operation of the tenancy law, may acquire occupancy rights, it was observed

he most certainly has such an implied authority for all ordinary prudent acts of management. The private arrangement is made for convenience of management of the estate. It surely follows then that when all the cosharers put one of their number in sole possession of a particular portion of the estate, there is an implied authority giving him the right to represent them for all the ordinary details of the management, which will include settling raiyats upon the estate lands for convenience of cultivation. It would, of course, only extend to acts done in good faith for the benefit of the estate. Once this principle is accepted, it seems to me that all difficulty disappears and all the rulings can be easily reconciled. Where it has been held in some of these cases that the cosharers can eject the lessee inducted by one of their number, it will be found that the lease was always in the nature of an encumbrance, and, therefore, Section 99, Estates Partition Act, was strictly applicable, and, if the partition was not under the Estates Partition Act, the same principle is applied on grounds of equity and good conscience. But in those cases where it has been held that the lessee could not be ejected, emphasis was laid on the fact that the settlement had been made in the ordinary course of management. Prom that it would follow that those were settlements made upon implied authority, and it would also follow that the settlements were not encumbrances so as to attract the operation of Section 99.

5. Dr. Dwarka Nath Mitter contends that this decision is in conflict with two previous decisions of this Court and with a decision of the Privy Council. The first of the decisions of this Court referred to is a decision of Das and Wort JJ. in Madho Lal and Others Vs. Mahadeo Rai and Others, , where it was held, following Niranjan Mukherjee Vs. Soudamini Dasi and Others, that a cosharer has no right to deal with joint property e.g., tenancy lands, in such a way as to affect the rights of the other cosharers. There is nothing in the report of that case to indicate whether the person whom it was sought to eject after partition had acquired occupancy rights either by reason of his being a settled raiyat of the village or otherwise.

6. The next decision of this Court is a decision of Das and Wort JJ. in Thakur Raghunandan Sahay Singh Vs. Thakur Dripa Nath Sahai Singh, . That, however, was a case of a thika dowami tenure and no question with regard to the accrual of statutory rights of occupancy could arise. In Raja Ram Rai and Others Vs. Niranjan Rai and Others, , it was observed:

In the application of the provisions of Section 99, Estates Partition Act, it is clear that some distinction is to be drawn between occupancy rights which are the creation of statute, and the rights of a lessee or a tenure holder which are the result of a contract between the single cosharer and the person in possession and it may be doubted whether, after occupancy rights have accrued by twelve years continuous possession, by virtue of the provisions of Sections 20 and 21, Ben. Ten. Act, any other cosharer would be entitled to eject the raiyat by the application of the provisions of Section 99 of the Act. The provisions of Section 25, Ben. Ten. Act, would appear to bar such a possibility.

7. There is one other decision of this Court to which reference should be made, namely a decision of Wort and Manohar Lall JJ. in Narayan Ram Sahu Vs. Kartic Singh and Others, . That also was a case in which a cosharer to whom a particular parcel of land had been allotted in a partition sued to eject a person who had been settled on that land by another cosharer prior to the partition. It was contended on behalf of the defendants that they having obtained a settlement of the land from a cosharer were protected from ejectment. Wort J. rejected this contention on the ground that under the Chota Nagpur Tenancy Act non-occupancy rights can arise only in the case of a holding which means a parcel or parcels of land which is the subject-matter of a separate tenancy and not an undivided share.

8. The appeal of the plaintiffs was accordingly allowed. Manohar Lall J. agreed that the appeal should be allowed but gave different reasons for his decision. "With regard to the defendants contention that having obtained a settlement of the entire lands from one cosharer they were protected from ejectment by reason of the rule enunciated in Binad Lal Pakrashi v. Kalu Pramanik (93) 20 Cal. 708 , Manohar Lall J. said:

It is enough to say that this defence was never pleaded in the written statement nor was any evidence led to establish the facts which would enable the defendants to take advantage of that rule and therefore necessarily there is no finding of the final Court of fact to enable me to apply this rule in the present case. Upon these findings the present suit is a simple suit for ejectment governed by the general law and none of the provisions of the Chota Nagpur Tenancy Act apply.

9. It is quite clear from the latter observation therefore that so far as Manohar Lall J. was concerned, he was not considering the effect of the accrual of raiyati rights under the Tenancy Act. The necessary facts which had not been pleaded in that case have been found by the Courts below in the present case, namely that Gajadhar was in exclusive possession of the disputed land by mutual arrangement with his cosharers and that the settlement with the predecessor of the defendant was a bona fide settlement in the ordinary course of management. The decision of the Privy Council on which Dr. Mitter relies is Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy AIR 1924 P.C. 144. The particular passage relied upon is:

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.

10. This decision of their Lordships of the Privy Council was explained in Ramasray Prasad Chaudhury and Others Vs. Ramsurat Singh and Others, , which was decided by James and Chatterji JJ., on 5th May 1939. It was observed that in the case before the Privy Council their Lordships had remarked that there was no evidence in the case before them to show that any of the raiyats whom it was sought to eject had held any of the land in suit for twelve continuous years so as to be able to claim rights of occupancy under the Tenancy Act. What their Lordships were considering were rights conferred by a lease and not rights which accrued by operation of the tenancy law.

11. It was next contended by Dr. Mitter that in the present case the predecessor of the defendant had been settled on the land not by a cosharer but by a thikadar who held under the cosharer and reference was made to another observation of their Lordships of the Privy Council in the same case to the effect that a middle-man cannot confer rights of occupancy. The observation of their Lordships must be read in the light of the facts of the case which they were considering and as was pointed out by James J., in the judgment already referred to, their Lordships in the Privy Council were not dealing with statutory rights which accrued by operation of the Tenancy Act. It is not the case of the defendant that occupancy rights were conferred on him by Mangal Prasad, the thikadar under Gajadhar, but that Mangal Prasad as thikadar was entitled, in the ordinary course of management, to settle tenants on the land and that 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 in which the land is situate.

12. In my opinion, the cases relied upon by the appellants do not decide the question which is before us.

13. Following the decision in Rajendra Narayan Vs. Hargobind Choudhury and Another, I would hold that the defendants predecessor acquired occupancy rights in the disputed land and that the plaintiffs suit must therefore fail. A point of difference between that case and the present one may be noted. In the present case the defendant has a two annas share in the proprietary right to the land in dispute. Even if this be so, he is entitled by reason of Section 22, Ben. Ten. Act, to hold the land as such part proprietor on the conditions mentioned in that section and the plaintiffs claim to recover possession must therefore fail on the principle of Watson & Co. v. Ramchund Dutt (91) 18 Cal. 10.

14. I would dismiss the appeal with costs.

Rowland J.

I agree.