Thomas Fredrick Dawson Miller, C.J.

1. These are two appeals under the Letters Patent from a decision of Mr. Justice Ross, dated the 27th of October last. There were two cases instituted by two co-sharer landlords claiming in the one case 8 bighas of land and in the other case 22 bighas 5 kathas against the same defendant, who previously had been a co-sharer with the plaintiffs. Both the suits raised exactly the same question for determination; they have been heard together and determined by one judgment.

2. The plaintiff and the defendants were co-sharer landlords in mouza Silarhi and in April 1918 effected a Collectorate partition whereby different parcels of the lands in suit fell into the takhtas of the plaintiffs respectively. It appears that before the Collectorate partition the defendants had been in actual possession of the lands and had been cultivating them and giving a portion of the produce to their co-sharer landlords. After the partition when the plaintiffs sought to get possession they were resisted by the defendants and after certain proceedings under Section 144 of the Criminal Procedure the present suits were instituted in October 1918 by the plaintiffs claiming possession of the lands after eviction of the defendants.

3. The case set up by the defendants in their written statement was that the lands were their ancestral kaimi raiyati lands which they acquired before their acquisition of the proprietary interest, and of course if that case could have been made out, no doubt, the defendants would have been entitled to remain in possession as raiyats notwithstanding the subsequent partition.

4. The case made by the plaintiffs was that the lands in question were not the defendants' raiyati jote at all but were the malik's bakashat lands and that the defendants were in fact in possession before the batwara but were in possession as maliks, and it was not disputed that the distribution of the produce was as stated and as set out in the record of rights.

5. A further defence was raised by the defendants to the effect that even if the disputed lands were the maliks bakasht lands, which they denied, then in that case also they were-entitled to remain in possession notwithstanding the partition, as there was no law or custom by which the defendants' kasht right in the disputed lands could, after the Batwara and demarcation of boundaries, be extinguished. The record of rights described the lands as bakasht of the maliks and in a note in the survey Khatian the manner in which the rent or the produce was distributed was thus stated:-

"After deducting the raiyati half share, from the remainder of the produce is again deducted landlords' share due to the co-sharer in possession and the residue is divided amongst the other maliks according to their shares with an addition of one and one-fourth seers in the maund for cess."

6. When the case came before the trial court the defendants contended that this entry in the record-of-rights was consistent, and consistent only, with a raiyati interest in the defendants and they strongly relied upon that entry as supporting their claim which was also evidenced by some oral testimony and that they had many years ago and before they became proprietors acquired a raiyati interest in the land. That contention, however, failed.

7. The learned Munsif came to the conclusion that the defendants had never acquired raiyati interest by purchase or otherwise from any tenant or from any one, and he found that the entry in the record-of-rights was not inconsistent with that which in another part of the record was distinctly stated, namely, that the lands were the bakasht lands of the maliks, and upon the whole of the evidence he arrived at the conclusion of fact upon that issue adverse to the defendants.

8. He further came to the conclusion that as the defendants were neither maliks nor tenants of the pattis in which the disputed lands were situated, they were not entitled to remain in possession. That finding disposed of the point raised as an alternative point by the defendants that having been in possession of bakasht lands they were still after the batwara entitled to remain in possession upon payment of rent to their co-sharers.

9. The case then went on appeal to the Subordinate Judge and he arrived at exactly the same conclusion of fact as that which the Munsif had come to and found that there was absolutely no documentary evidence to prove that the defendant had ever acquired any tenancy right prior to their acquisition of proprietary right in the village and that the oral evidence on their behalf was quite unreliable. Those findings of fact cannot be questioned in second appeal, but when the case came on second appeal, to this Court it was contended before the learned Judge that notwithstanding the finding of fact the defendants had upon the facts found acquired an interest in the land which was not extinguished by reason of the batwara proceedings.

10. This view of the case appears to have commended itself to the learned Judge because he allowed the appeal and dismissed the suits with costs. He was apparently influenced by the entry in the record-of-rights as to the manner in which the produce had been distributed between the defendants actually occupying the land and their co-sharers. He thought that this fact itself negatived the suggestion that the lands were part of the serait lands of all the proprietors held for the purpose of convenience by those particular proprietors, the defendants.

11. If the learned Judge meant by that passage that the plaintiffs were contending that these were zerait lands and, therefore, that no right of occupancy could be acquired in them, the learned Judge had not appreciated what the real issues in the case were. I think, however, it is only fair to the learned Judge to say that in using the words zeraiti lands there, he was not using the term in the technical sense in which it is used in. the Bengal Tenancy Act. He probably meant to use the expression merely to indicate lands in the direct possession of the maliks such as bakasht lands. However that may be, the conclusion he arrived at was that the plaintiffs even after the Batwara could only become entitled to cultivating possession of the disputed lands as a result of partition, if the right to cultivate itself was in notchpot when the partition was made. It seems to me with great respect to the learned Judge that in expressing the matter, as I have just stated, he was somewhat misplacing the onus.

12. Unless the plaintiffs had acquired some right in the lands known to the law, some tenancy right or some right recognised by the law as creating an interest therein, other than the proprietary interest, the result of the partition would inevitably be that the co-sharers to whose takhta the land was allotted would get possession of the land, and direct possession, unless there was some tenant already on the land. It was not necessary to prove affirmatively that it was the intention in the Batwara proceedings that this land should be given into the direct cultivating possession of the landlords.

13. It must be presumed that the right to cultivate was considered by the landlords at the time of the partition to have been, as the learned Judge described it, itself in notchpot. Apart altogether from any intention, it seems to me that it was in notchpot and that the onus was upon the defendant to prove by some arrangement or by some agreement between the proprietors when the batwara partition was effected that the right actually to cultivate was not in notchpot. Two cases however, have been relied upon by the learned Government Pleader on behalf of the respondents which he says support his contention.

14. The first of those was Basudeo Narain v. Radhakishan  A.I.R. 1922 Pat. 62, to the judgment in which my learned brother was a party, in which it was decided that a co-sharer, who acquires an occupancy holding during the continuance of the joint estate of himself and his co-sharers, does not lose his raiyati right by reason of a Collectorate partition. That decision, however, may be justified under Section 22, sub section (2) of the Bengal Tenancy Act. The case set up in the present appeal is admittedly not a case coming under Section 22, sub-section (2) of that Act it is not contended that the defendants acquired any occupancy right during the period that they were co-sharers with the plaintiffs.

15. The other case is a decision of similar import. It is Nandkishore Singh v. Mathura Sahu A.I.R. 1922 Pat. 193 . That was a decision of Jwala Prasad, Acting Chief Justice, and Mr. Justice Das, and that again was a case where the right of the defendant was acquired in the circumstances contemplated in Section 22, sub-section (2) of the Bengal Tenancy Act, and it is important to observe that in the course of the judgment, after pointing out that one of the contentions was that the lands were the bakasht of the proprietors and as such the plaintiffs had no right to the same if they fell into the pattis of the defendants in the partition proceedings, it is Stated

"This would be so if the land was the bakasht of the proprietors prior to the partition".

16. So that so far from this decision being an authority in favour of the respondents it seems to me an authority to the contrary.

17. The result of my opinion is that in all cases where you have a Collectorate partition between co-proprietors, if the lands are merely the bakasht lands of the landlords before the partition, then in the absence of any special arrangement come to between the landlords themselves at the time of the batwara, none of them has the right to dispute the possession of those into whose takhta the particular lands in question fall. The only exceptions seem to me to be those which are created by law either under the Bengal Tenancy Act or under some other provision of la w whereby a tenancy interest or possibly some other interest in land is acquired.

18. But in the present case there is no law that I am aware of which provides that merely because a co-sharer has been in possession of bakasht lands belonging to himself and his co sharers he is, therefore entitled after a Collectorate partition to remain in possession of those lands when they are allotted to the tukhta of one of his co-sharers.

19. In my opinion, these appeals should be allowed with costs, the decision of the learned Judge set aside and the decree of the Subordinate Judge restored.

L.C. Adami, J.

20. I agree.