Chatterji, J.These two appeals arise out of final decree passed in a suit for partition brought by the plaintiff against defendants 1 and 2, each of the parties owning one-third share. First Appeal No. 125 is on behalf of the plaintiff while the other appeal is on behalf of defendant 1.

2. The points raised on behalf of the plaintiff are: (l) that the rate for the basgit land should have been assessed at a higher figure; (2) that certain rayati lands purchased by one Kulan Singh should have been rated as bakasht on the ground, as alleged, that the purchase had been made by defendant 1 in his name and (3) that defendants 1 and 2 should not have been allotted almost the whole of the basgit lands and plot 518/1 said to have been a graveyard ought to have been divided on a different principle.

3. On the question of raibandi, that is the rating of the basgit lands, it appears from the judgment of the learned Subordinate Judge that not a single word was uttered by any party about the rates fixed by the commissioner when he submitted his draft raibandi for the Courts approval. Then the basgit land was rated higher than the other lands by the commissioner and no materials have been placed to justify me to hold that the rate as fixed by the commissioner and accepted by the Court is in any way unfair or inequitable.

4. As regards the second point, the onus is on the plaintiff to show that the apparent transaction is not real and Kulan Singh is a benamidar for defendant 1. It was suggested on behalf of the plaintiff that Kulan Singh was the maternal uncle of defendant 1 and had no lands in this village; this is denied on the side of defendant 1. The evidence of P.W. 1 and Darbeshwar Tewari, in cross-examination, shows that Kulan Singh has got lands in Babu Eamsarans patti in this village.

5. In the cross-examination of defendant 1 it was suggested in the first place that his mother and Kulan Singh were brother and sister. But when he denied this and stated that he was the grandson of Chhedi Singh and not of Rajkumar, a question appears to have been put that Rajkumar and Chhedi were brothers, evidently on the suggestion that Kulan Singh was Rajkumars son; the defendant denied that Rajkumar and Chhedi were brothers. But this change of front is significant. I have considered the entire evidence and I am unable to hold that the plaintiff has established that Kulan Singh is a benamidar of defendant 1. In my opinion the lands of Kulana Singh have been rated correctly in the Court below.

6. As regards the third point, defendant 1 and 2 have got their houses in this village while the plaintiff is a non-resident malik. There is no house of any tenant in this village. The basgit lands that have been allotted to defendants 1 and 2 seem to be necessary for their occupations and I think this allotment cannot be questioned as unfair. The very fact that the plaintiff had in his raibandi valued the basgit lands at the high rate of Rs. 30 shows that he also understood that basgife lands would be allotted to the defendants.

7. As to plot 518/1 there is nothing to show that it is a gravevrd. The khatian shows it to be a dhanhar land and the entire block there, appears to have been divided between the parties. In short, I think that the allotment cannot be questioned as unfair. The commissioner as also the learned Subordinate Judge went to the locality and nothing; has been shown to justify me in disturbing the allotment made. The plaintiffs appeal must, therefore, fail.

8. As to the appeal of defendant 1, it is urged that some land settled by the plaintiff in mokarrari with Mosaheb Ali was directed by the Court to be valued, as bakasht, but as a matter of fact this has been rated as rayati land; the bakasht lands have been rated at Rs. 10 whereas this land has been rated at. Rs. 4-3-0 per bigha: this is evidently a clerical mistake and ought to be corrected. This works a loss of Rs. 2-8-0" per year to the plaintiff. But it will not, in my opinion, be equitable to set aside the entire allotment because of this-slight inaccuracy; justice will be done if money compensation be awarded to defendant 1 in respect of this mistake. At 20 years purchase, I think that the plaintiff should pay money compensation of Rs. 50 to defendant 1.

9. The next point raised [on behalf of defendant 1 is that certain plots purchased! by him from a tenant in execution of a decree for rent should have been valued as rayati land and not as bakasht. It is admitted that the purchase was made in execution of a cosharers decree for rent which operated as a money decree. It is also admitted that there is no custom of transferability and what was purchased was the jote or occupancy holding of a certain tenant Prasad Tewari. It is urged by the learned Counsel for defendant 1 that u/s 22(2), Ben. Ten. Act, he is entitled to hold the land subject to the payment of rent to his co-proprietors and as such it constitutes a rayati holding and should have been rated as such. In my opinion this contention is without any substance.

10. It is settled law that if a non-transferable holding be transferred the purchaser acquires no interest as against the landlords, that is, the entire body of landlords. If one of the cosharer landlords purchases a non-transferable holding this is valid to the extent of his interest, but he cannot force the purchase on his co-proprietors. It has been laid down by their Lordships of the Privy Council in the Midnapur Zamindary Co. v. Naresh Narayan Roy AIR 1924 P.C. 144 , that no cosharer can, as against his cosharers, obtain any jote right in the lands held in common. The principle that when one cosharer landlord takes a transfer of a non-transferable holding from a tenant he may be treated by the other cosharer landlords as a trespasser is a principle well settled. A reference may be made to the decision of the Calcutta High Court in Budhu Koiri Vs. King Emperor, . As against the landlord purchasing a non-transferable holding his co-sharers are entitled to Joint possessions to the extent of their shares : vide the recent case of Golbar Bibi and Others Vs. Aswini Kumar Sinha Roy and Others, .

Section 22(2), Bengal Tenancy Act, on which reliance is placed by the learned Counsel for the defendant 1, has no application to the case of a non-transferable holding. As laid down by Sir Lawrence Jenkins and Mookerjee, J., in Lakhi Kant Das v. Balabhadra Prosad [1914] 19 Cri.L.J. 400, Sub-section (2), Section 22, Ben. Ten. Act, applies only to a case in which a transferable occupancy holding has been purchased. It is true that this case was decided on a purchase made before the amendment of the Bengal Tenancy Act in 1907, but so far as the question whether Section 22(2) applies only to transferable or both to transferable and non-transferable holdings, the language of the section has not been, altered by the amendment made in 1907. This view receives support from Bipro Dass v. Surendra Nath [1918] 43 Cal. 467. I am satisfied that Section 22(2), Ben. Ten. Act applies, only to a case in which a transferable occupancy holding is the subject matter of the purchase. In this view of the case, it is clear that the learned Subordinate Judge adopted the correct principle in valuing this non-transferable occupancy holding purchased by a cosharer landlord.

13. The learned Counsel in the course of his argument refers to the following observation in Badlu Pathak v. Sibram Singh AIR 1928 Pat. 234 .

A landlord holding a decree for rent can. sell the property and purchase it himself. If he is a cosharer proprietor, as in this case, he acquires the peculiar interest conferred by Sub-section (2), Section 22 and may hold the land on, paying to his co-proprietors their share of rent, and may transfer his rights so acquired to a third parson who thereupon becomes a raiyat.

14. The matter there was as regards the right of a mortgagee as against the landlord. The question whether Section 22(2) is limited to the case of a transferable holding did not arise for consideration. Then in this particular case the cosharer landlord had made the purchase in execution of a decree obtained by him u/s 148-A. As such the question of transfer ability will not arise. Whether a tenancy is transferable or not, the landlords cannot ignore the auction purchaser in. their own decree. The case of Badlu Pathak is no authority for the general" proposition contended for by Mr. Manohar Lal.

15. A point was raised by the learned Counsel for defendant 1 that his purchase was recognised by the other landlords by acceptance of rent. It is also stated that defendant 2 was the predecessor-in-interest of the plaintiff and had recognised the purchase. An application is made in this Court for the reception of certain D Registers in evidence.

16. It appears that this question of recognition was never raised in the lower Court and it will not be proper to accept any additional evidence on this point at this stage. The plaintiff had no opportunity of meeting the case that he was the purchaser from defendant 2, In the next place, the receipt purporting to have been granted on behalf of the plaintiff has been denied on oath and I am not satisfied that it is a genuine document. The receipts purporting to have been granted by defendant 2 look fresh and got up for the purpose of this case. I am not prepared to place any reliance on these receipts and the evidence of recognition is in my opinion far from conclusive.

17. In the result, Appeal No. 125 is dismissed with costs and Appeal No. 134 is decreed to this extent that defendant 1 will get a money compensation of rupees fifty from the plaintiff ; there will be no order for costs in this appeal.

Ross, J.

I agree.