Kulwant Sahay, J.This appeal by the plaintiffs arises out of a suit for recovery of possession of 3 bighas 16 kathas of zerait or bakasht lands included in the allotment made to the plaintiffs in a Collectorate partition, the defendants-second-party claiming to hold it as mukarraridars

under a mukarrari deed executed in their favour by the co-sharer of the plaintiffs before the partition. The facts are shortly these: The entire 16 annas of village Rupnath Chapra, tauzi No. 18235 of the Muzaffarpur Collectorate, belonged to Kalar Singh the father of defendant 1. Kalar Singh sold a 4 annas share out of his 16 annas shares in the tauzi to one Bechu Singh in the year 1903. Bechu Singh in turn sold this 4 annas share to the plaintiffs on 21st December 1917.

2. On 13th September 1919 defendant 1, who was the joint co-sharer with the plaintiffs in respect of a 12 annas share, granted a mukarrari to the defendants-second party of 4 bighas of the bakasht lands appertaining to his 12 annas share. In the year 1921 there was a Collectorate partition of the tauzi and a separate allotment was made to the plaintiffs as representing their 4 annas share in the tauzi and this was formed into a separate estate bearing tauzi No. 24691. Out of the bakasht land which was granted in mukarrari to the defendants-second party by the first party, 3 bighas 16 kathas was included in the allotment to the plaintiffs.

3. The plaintiffs instituted the present suit for recovery of direct possession of this 3 bighas 16 kathas on the allegation that they were not bound by the mukarrari and were entitled to take the land unencumbered with the mukarrari. The defence was that before the Collectorate partition there was a private partition of bakasht lands amongst the proprietor under which defendant 1 was holding the 4 bighas in dispute in severalty and that the mukarrari granted by him under those circumstances was binding on the present plaintiffs. Both the Courts below have found as a fact that there was a private partition amongst the co-sharer maliks and the learned District Judge has observed that no dispute was raised on appeal that the bakasht lands of the tauzi had been in separate possession of the parties by private arrangement. The question upon this finding is whether Section 99, Estates Partition Act, (Bengal Act 5 of 1897) applies. If this section applies there can be no doubt that the plaintiffs are entitled to direct possession. Section 99 provides:

If any proprietor of an estate held in common tenancy and brought under partition in accordance with this Act has given his share or a portion thereof in patni or other tenure or on lease, or has created any other encumbrance thereon, such tenure, lease or encumbrance, shall hold good as regards the lands finally allotted to the share of such proprietor, and only as to such lands.

It is contended on behalf of the appellants that the estate in question was held in common tenancy between the plaintiffs and defendant 1 before the Collectorate partition and that the mukarrari given by defendant 1 to the defendants-second party shall hold good only as regards the bakasht land finally allotted to the share of defendant 1 under the Collectorate partition and not to the land allotted to the plaintiffs.

4. On the other hand, it has been contended on behalf of the respondents that, although the estate was held in common tenancy yet the bakasht lands were held by the proprietors in severalty and therefore Section 99 has no application to the present case. The question was considered by this Court in Madho Lal and Others Vs. Mahadeo Rai and Others, . In that case also it had been found by the lower appellate Court that there had been a private arrangement between the defendant-first party and the defendant second party under which the former was in possession of the joint bakasht lands and the latter was in possession of the joint raiyati lands.

5. The plaintiffs in that case had taken a settlement of the disputed lands from the defendant second party which on partition was allotted to the defendant-first party. Das, J., in dealing with this point observed as follows:

It is well settled that a co-sharer has no right to deal with joint property in such a way as to affect the lights of the other co-sharers. * * * The disputed lands have fallen to the takhta of the defendants first party and I can see no ground whatever for holding that the defendants-first patty would have this encumbrance on their property. The case rests on a principle and is covered by authorities. It is not necessary to refer to all the authorities; it will be sufficient for us to refer to a decision of the Full Bench of the Calcutta High Court in Niranjan Mukherjee Vs. Soudamini Dasi and Others, where it was pointed out that a person to whom a parcel of land has been allotted by a decree for partition of a civil Court does not take it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the co-sharers.

6. The learned Judges composing the Full Bench in the Calcutta case referred to above considered a number of decisions where the question had arisen and held that the equitable principle laid down by the Privy Council in Byjnath Lal v. Ramdoodeen (1873) 1 IA 106 applied to such cases and was recognised by the legislature in Section 99 Estates Partition Act. The decision of this Court referred to above was cited before the learned District Judge in the present case but he refused to follow it as he doubted its correctness, and he referred to the decisions of the Calcutta High Court in Hridoy Nath Shaha v. Mohobutnessa Bibee (1893) 20 Cal 285, Prosanna Kumar Bedanta Tirtha v. Madhu Badya AIR 1923 Cal 279 and Rama Charan v. Pyari Mohan AIR 1926 Cal 433 .

7. In my opinion, when there is a direct decision of this Court on any particular point Courts subordinate to this High Court ought to follow that decision in preference to a contrary decision of the other High Courts on the same point. In fact, the decision of a Division Bench of this Court is binding not only on the subordinate Courts but also on the other Division Benches of this Court so long as that decision is not overruled by a Full Bench of this Court or on appeal by the Privy Council.

However the view taken by this Court is supported by a ruling of the Judicial Committee in AIR 1927 117 (Privy Council) and this decision has in effect overruled the Calcutta decisions referred to by the learned District Judge.

8. There in the zamindari in question which was of a very great extent and was owned by about 300 proprietors was brought under partition and formed into 28 different estates. Some of the proprietors had granted patnis in respect of specific villages comprised within the zamindari as forming their shares in the zamindari. The question was whether the proprietor to whose new estate formed under partition some of the patni leases had fallen but who had not himself created those patni leases was bound by those leases, or whether he was entitled to take possession thereof free of those patni leases. Lord Phillimore in delivering the judgment of the Judicial Committee referred to Sections 4, 7 and 99, Estates Partition Act, and held that, although some of the villages comprised in the zamindari were held by some of the proprietors exclusively that did not amount to holding the zamindari in severalty.

9. Referring to the view taken by the High Court his Lordship observed:

It is a view that there is some teritium quid between common tenancy and several holding, and that when this teritium quid exists, if any formal partition supervene, it does not affect or interfere with the arrangement under which the landowners who are in some respects still tenants-in-common may yet have specific shares of the estate allotted to their exclusive enjoyment. The act does not apparently contemplate any such cases as being possible.

10. In this view of the case it is not necessary to consider the decision of the Calcutta High Court relied upon on behalf of the respondents and referred to by the learned District Judge, and I am of opinion that Section 99 applies and the plaintiffs are entitled to take direct possession of the land in dispute. There is another ground upon which the plaintiffs are entitled to succeed in the present case. Section 77, Estates Partition Act, provides:

Whenever the Deputy Collector who is appointed to carry out a partition finds that, in pursuance of a private arrangement formally made and agreed to by all the proprietors of an estate, the proprietors respectively, or any of the proprietors, are in possession of separate parcels of land held in severally as representing portions only of their respective interests in the parent estate, while other land of the parent estate is held in common tenancy between such proprietors, then, notwithstanding anything contained in Section 7, a joint application shall not be required, and the Deputy Collector shall allot to the separate estate of each proprietor the land of which such proprietor is found to be in possession in severalty in accordance with such private arrangement.

11. There is however an exception provided for in the explanation to this section, which says that lands held in the occupation of the several proprietors of an estate as sir khamar or nijjote shall not be deemed to be land held in severalty within the meaning of this section. The lands in question in the present case came within the denomination of sir khamar or nijjote and therefore the Deputy Collector was not bound to allot these lands to the proprietor in whose separate possession he found those lands under a private arrangement. This fact takes away the present case from all the Calcutta cases referred to by the learned advocate for the respondents. This view is supported by the decision of Mullick and Sultan Ahmad, JJ., in Bahuria Janakdulari Kuer v. Bindeshwari Gir AIR 1920 Pat 685.

12. I would therefore set aside the decree of the District Judge and decree the suit for possession of the land claimed. The plaintiffs are also entitled to mesne profits as claimed the amount of which will be determined by the first Court on a proper application being made therefor. The appellants are entitled to their costs throughout.

Courtney-Terrell, C.J.

13. I agree.