Ross, J.The plaintiffs, who will be hereafter referred to as the Banaili Raj, represent 13-annas 3-pies interest in Mouza Parora; the defendants first party, who will be hereafter referred to as the Srinagar Raj, represent the remaining 2-annas 9-pies interest; the defendant second party is the receiver of, the Srinagar estate; the defendant third party, Ramlal Dubey, is the son of Subaklal Dubey, who was the" tenant of a holding of 153 bighas 5 kathas and 17 dhurs in the village. He sold this holding to Dwaikanath Thakur and Bikan Thakur and in the Record of Rights, prepared somewhere about 1890, the name of Subaklal as vendor arid Dwarkanath and another as vendees were both entered in respect of this holding. The plaintiffs brought a suit for rent in 1897 against these vendees and sold the holding in execution of the decree in 1898 and purchased it themselves. They settled the land with, different tenants from time to time and, eventually, the defendant fourth party be came the tenant in 1911. Subsequently there was a partition of Mousa Parora between the Banaili Raj and the Srinagar Raj and by partition, 71 bighas 15 kathas and 7 dhurs of that holding was allotted to the Banaili Raj and 81 bighas 10 kathas and 10 dhurs to the Srinagar Raj; but, in the partition papers the Record of Rights was used with the result that the name of the recorded tenant was given as Subaklal Dubey. Even after the partition, the Banaili Raj continued to pay to the Srinagar Raj the rent of that portion of the holding which had fallen to their takhta and received rent receipts. Notwithstanding this, the Srinagar Raj, in 1917 instituted a suit for rent of the 81 bighas against the defendant third party and obtained a decree and took proceedings for sale of the holding. This suit was, therefore, brought by the Banaili Raj for a declaration that the defendant third party had no connection with the land; that the Srinagar Raj was only entitled to the proportionate rent of the 81 bighas; that the rent-decree was null and void; and that the property could not be sold in execution thereof.

2. The suit was defended only by Ramlal Dabey, defendant third party; and his contention was that since the partition the Banaili Raj had no concern with this holding and that they had noright to maintain the suit.

3. The Munsif found that Subaklal Dubey had parted with his interest in the holding and that Dwarkanath Thakur and Bikan Thakur were in possession as purchasers. lie farther held that the Banaili Raj had obtained possession of the holding and had paid rent to the Srinagar Raj both before and after the partition; and that the Banaili Raj had been realizing from the persons in actual possession and had been paying rent to the Srinagar Raj.

4. He held, however, that inasmuch as the defendant fourth party must be deemed to be the raiyat of the land u/s 22(2) of the Bengal Tenancy Act, he became a raiyat under all the proprietors and, therefore, since the partition, the plaintiffs have no interest now in the land in suit. He, therefore, dismissed the suit. The learned District Judge agreed with this view and dismissed the appeal of the plaintiffs.

5. It is now contended in second appeal that the partition did not affect the rights of the Banaili Raj in this land except to this extent that the Srinagar Raj became entitled to the entire rent of 81 bighas instead of a proportionate rent in the entire 155 bighas; that the Banaili Raj is still in possession through the defendant fourth party, and that they have been recognised by the Srinagar Raj who have accepted rent from them subsequently to the partition. Reference was made to the decisions of this Court in Jhapsi Sao and Others Vs. Musammat Bibi Aliman and Others, , Nandkishore Singh v. Mathura Sahu 65 Ind. Cas. 586 : 3 P.L.T. 13 : AIR 1922 Pat. 193 and Basudeo Narain Vs. Radha Kishun and Dabindra Missir and Others, . The learned Advocate for the respondents sought to distinguish these last mentioned cases on the ground that they deal with a case where an entire holding has fallen to a co-sharer other than the purchasing cosharer, whereas in the present case the purchasing co-sharer has in fact obtained 71 bighas and odd kathas out of the holding already and is, therefore, not entitled to claim any interest in the remainder which has fallen to the other takhta. This distinction does not seem to me to proceed on - any principle. The fact that the proprietary right of part of a holding after partition has fallen to the co-sharer who purchased the entire holding will not affect the question of his status with regard to that portion of the holding which falls in the takhta of another landlord. The first mentioned decision is sought to, be distinguished on the ground that it was a case between co-sharers, whereas the present case is a case between a co-sharer and a person alleging himself to be a tenant. That, however, would be no ground for distinguishing the decision so far as it deals with the effect of a partition upon the interest of a purchasing co sharer. It was further contended that the Banaili Raj ought to have set up this right in the partition proceedings; but, on the contrary, they allowed the name of the contesting defendant to be recorded in respect of this holding in my opinion, nothing turns on this. It is stated in the plaint that the partition was made according to the Survey Papers and that statement has not controverted. If, for the purposes of the partition, the name of a tenant who had long ceased to have any interest in the holding was recorded, that cannot affect the real rights of the parties.

6. The main contention, however, on behalf of the respondents is that inasmuch as when the purchasing co-sharer settles, the land, the, tenant becomes a raiyat u/s 22(2), the; position of the purchasing co-sharer then becomes that of landlord and, consequently on partition, his interest ceases when the holding falls to the takhla of an another when the purchaser makes a settlement, he is hot himself a tenant nor a tenure-holder and must, therefore, be a proprietor The question is not free from difficulty; but it is important to observe the exact language of Section 22(2). It is not enacted that if the transferee sub-lets the land to a third person, such person shall be as tenure-holder or a raiyat, as the case may be; in respect of the land, but that such person shall be deemed to be a tenure-holder or a raiyat; that is in say, the section itself recognizes the relationship as artificial and, by implication suggests that, by making such a settlement, the transferee is not a landlord, but that the peculiar status conferred) upon him by the section as held in Bambhadur Lal v. Gungora Kaur (4) still continues notwithstanding the settlement. Not is it apparent oh principle why the interest of the transferee co-sharer should be affected merely by his making a settlement with a tenant. It has been held in many decisions in this Court that he is entitled to hold the land which he has acquired, after partition, and I do not see how it can make any difference to this right that he has settled it with a person who is deemed to be raiyat. The position, is certainly anomalous; but the anomaly 19 the creation of Section 22(2).

7. In, my opinion, therefore, this appeal must be decreed with costs and the decrees of the Courts below set aside and the suit of the plaintiffs decreed with costs throughout against the defendant third party.

Das, J.

8. I agree.