Meredith, J.This is an appeal from a decision of Rai Bahadur R.L. Chatterjee, District Judge of Darbhanga, dated 28th May 1938, confirming a decision of Babu Shibnandan Prasad Singh, Munsif of Samastipur, dated 7th December 1936.

2. The plaintiff is the appellant. He sued for recovery of possession of 3 bighas 10 kathas and 4 dhurs of land situated in mauza Harouli, by ejecting the defendants, and also for mesne profits upon the following allegations. Mauza Harouli (tauzi No. 6752) was held jointly by several proprietors, the plaintiffs share being 7 annas and odd. For facility of cultivation the proprietors had by private arrangement divided the zerat lands of the village amongst themselves.

3. In the year 1923 there were proceedings under the Estates Partition Act., and on their conclusion in 1927 the different proprietors were given delivery of possession over the takhtas or allotments assigned to them respectively. The lands in suit were the zerat lands of the maliks, and were recorded in the survey papers as bakasht. They were assigned to the takhta of the plaintiff, but in the course of the batwara proceedings, at the time the raibandi was going on, on the application of the father of the defendants (since deceased), the lands in suit together with some other lands making 4 bighas in all, were recorded as the raiyati lands of the defendants on the allegation that they had been given a raiyati settlement at a total jama of Rs. 16 per annum by one of the plaintiffs cosharers, who was then in separate possession of these lands under the private arrangement. This entry was made despite an objection on the part of the proprietors. The plaintiff claimed that the defendants story of settlement from a cosharer was not correct, but that in any case his cosharer could not create any tenancy right binding against him.

4. The defendants case was that they had taken settlement of the 4 bighas in question from a cosharer, who was at the time admittedly in possession, by means of an unregistered patta, dated 30th Jaith 1314 Fasli, at an annual jama of Rs. 16-8-0. From that time the defendants had remained in possession as kaimi tenants all along, had paid rents to the maliks and got receipts. They had acquired a right of occupancy by more than 12 years cultivating possession, and also because when they took the settlement they were settled raiyats of the village. Their occupancy status was upheld in the batwara proceedings in the presence of the plaintiff and the other proprietors. The plaintiff in those circumstances was not entitled to treat the tenancy as non-existent, or to eject them by ignoring the batwara decision.

5. The concurrent findings of the Courts below are that the lands in suit were bakasht lands; they were in possession of some of the cosharers under a private arrangement made for convenience; and those cosharers gave the defendants a raiyati settlement in 1314 Fasli, since when the defendants remained in cultivating possession. The defendants wore settled raiyats of the village, and on that, account, and by twelve years cultivating possession, they acquired occupancy status and could not be ejected. Section 99, Estates Partition Act, had no application to such a case. The settlement with the defendants was made in the ordinary course of management of the estate, and was a prudent act having regard to the circumstances. The defendants had acquired a right of occupancy, and could not be ejected otherwise than under the principles governing the Bihar Tenancy Act. The settlement must have been known to the other proprietors, and, as there was never any protest until the time of the partition proceedings, those other proprietors must be held to have acquiesced in the settlement. Moreover, the lands in suit were allotted to the plaintiffs takhta on partition subject to the tenancy, and, whereas for the purposes of partition bakasht lands of the estate were rated at Rs. 7-8-0 per bigha, these lands were rated only at Rs. 4 per bigha as tenanted lands.

6. There was an appeal to the Collector against the order of the batwara officer, and that was unsuccessful : vide Ex. D. The order in the batwara proceedings therefore became final and could not be challenged in a suit like the present. The only possible suit with which the plaintiff could have come would have been a suit for getting the batwara decision set aside, and for that, the period of limitation had certainly expired before the present suit was filed.

7. The argument for the appellant is that Section 99, Estates Partition Act, is applicable. A cosharer malik, who is in separate possession only under a private arrangement made for convenience, cannot create a tenancy interest valid against his cosharers. There is no tertium quid between common tenancy and several holdings. Despite the private arrangement, therefore, the lands were still held in common tenancy, and Section 99, Estates Partition Act, must apply. This has been laid dawn by the Privy Council in AIR 1927 117 (Privy Council) where it was also laid down that Section 99 is applicable even where the lease is not of a share but of a specific property.

8. No doubt it was laid down in the Calcutta Full Bench case in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708 , that tenancy rights can be acquired by bona fide settlement even from a trespasser. But that is only because a trespasser in possession represents, though wrongfully, the whole body of proprietors. The word landlord as used in the Tenancy Acts means the entire body of landlords: Golbar Bibi and Others Vs. Aswini Kumar Sinha Roy and Others, . A single cosharer therefore where there are several proprietors, is not the landlord, and cannot create a valid tenancy, but can only create an encumbrance, which will be invalidated on partition u/s 99.

A number of decisions have been cited in support of the proposition that a cosharer in possession cannot create a lease binding upon the other landlords after partition, but none of them relate to cases in which a raiyati status on the part of the lessee has been made the basis of defence, and they are not therefore strictly applicable. Nundo Kumar v. Banomali Gayan (02) 29 Cal. 871 was a case where the defendants, when sued in ejectment, relied upon Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708 , but the plaintiffs secured a decree. In this case, however, the Court expressly found that the status of the defendants had not been determined. It had not been shown they were cultivating raiyats; and in any case that case is quite distinguishable in view of the fact that the plaintiffs sued under a lease from the same landlord made prior to the leases under which the defendants claimed to have acquired their interest.

9. It was held that the landlord by her prior lease to the plaintiff, which was subsisting, had deprived herself of the right to give concurrent leases to other persons. The decision was based upon that finding. In Niranjan Mukherjee Vs. Soudamini Dasi and Others, it was held by a Full Bench of the Calcutta High Court 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 cosharers.

10. In that case a number of prior conflicting decisions were examined before coming to the conclusion that a cosharer on partition made by the Civil Court can eject the lessee. But the lease in question was a mukarrari maurasi lease, and there was no question of the accrual of raiyati status by statute, no question of any rights which might have arisen in the lessee, not under the lease, but by operation of law. Strong reliance was also placed on Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 P.C. 144, wherein their Lordships of the Privy Council observed:

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 thorn.

11. This observation would certainly appear at first sight to conclude the matter, but only when taken out of its context. That decision has been explained by James J. of this High Court in a decision to which I shall presently refer. Turning now to the Patna cases cited, in Balgobind Mandar v. Dwarka Prasad AIR 1922 Pat. 279 it was held that where a tenant had been inducted on to the land by the twelve annas proprietors, as such part proprietors and not as, or on behalf of the entire body of landlords, the four annas proprietors were entitled to maintain a suit for joint possession. It does not appear, however, that this was a case of raiyati lease.

12. Though it is not clearly stated, it appears to have been the case of a tenure, as the area of the land in question was 143 bighas. Qaymuddin Khan v. Ramyad Singh AIR 1922 Pat. 354 is not really a case in point, as the raiyati interest was claimed by some of the cosharers themselves, and they were merely held to have been in possession, not as raiyats but as maliks. In Madho Lal and Others Vs. Mahadeo Rai and Others, it was held that a cosharer has no right to deal with joint property, such as for example, tenancy lands, in such a way as to affect the rights of the other co-sharers. But it does not appear that any question of occupancy status was raised in this case, and it proceeded merely upon the basis of Niranjan Mukherjee v. Soudamini Dasi AIR 1926 Cal. 714 with which I have already dealt. Narayan Ram Sahu Vs. Kartic Singh and Others, is cited for the proposition that

a person, who has been inducted on the lands by one of the cosharer-thicadars without the consent of others, is not a non-occupancy raiyat.

13. But this case is easily distinguishable, for the decision proceeded on the basis that the defendant had no separate holding which could give him a raiyati status, inasmuch as one of the cosharers had previously obtained against him a decree for joint possession, and so all he had was an undivided interest in a holding. So far as I am aware, there is no case in which the proposition of law asserted on behalf of the appellant has been clearly and explicitly laid down. So far as I am aware, in no case has it been held, that Section 99, Estates Partition Act, can override the provisions of the Tenancy Acts or prevent the accrual of occupancy rights.

14. On the other hand there are observations in several cases which lend support to the view that when a raiyati settlement is made by a cosharer in possession in the ordinary course of prudent management, the incidents of a raiyati tenancy will be applicable as against the cosharers.

15. In Dakhyani Debi v. Mana Rout AIR 1914 Cal. 577 it was held that where one of the cosharers granted an amalnamah for the purpose of reclamation and improvement of jungle and waste land which belonged to all the cosharers, to A who remained in possession for more than ten years without any objection by other cosharers and reclaimed the land, A became the tenant of all the cosharers. The position of A could not be worse than what it would have been if he had in good faith accepted settlement from a trespasser in actual occupation of the land in which event he would have attained the status of a raiyat upon the principles laid down in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708 . In that case two of the cosharer-proprietors had refused to recognize the plaintiff or accept rent from him. Watson & Co. v. Ram Chan Dutt (91) 18 Cal. 10 was relied upon for the proposition that one cosharer cannot restrain another from cultivating the land in a proper and husbandlike manner, and it was observed that in this case the land was waste and uncultivated. The settlement was made in the ordinary course of management and was a prudent act. All the cosharers were therefore bound to recognize it. It will be observed that, though the fact was not expressly stated this ruling really proceeded upon the principle of representation.

16. In Mahabir Das Vs. Udit Narain Verma and Others, it was held that a receiver in possession represents the entire body of landlords and can create a valid tenancy. No doubt the ruling is not strictly in point; and indeed there is no reported Patna case which is exactly in point. Neither side in this appeal has been able to cite authority conclusive upon the question in issue. In Raja Ram Rai and Others Vs. Niranjan Rai and Others, there is, however an obiter dictum of James J., which comes very near the point. The learned Judge 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, Bengal Tenancy 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, Bengal Tenancy Act, would appear to bar such a possibility.

17. Lastly, in an unreported case, Ramasray Prasad v. Ramsurat Singh reported in AIR 1940 Pat. 131 the same learned Judge, sitting with Chatterji J., considered the same question. He referred to the decision in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 P.C. 144 the Privy Council case, so strongly relied on by the present appellant and observed that their Lordships had remarked in that case that no evidence had been brought to their attention to show that any of the raiyats in question had held any of the lands in suit for twelve continuous years before suit, so as to be able to claim right of occupancy u/s 180, Ben. Ten. Act; and their Lordships were considering only what rights could be conferred under the lease, and not the question of any rights that might accrue by operation of law under the Tenancy Act. He referred with approval to Dakhyani Debi v. Mana Rout AIR 1914 Cal. 577 and observed that, as in that case, so in the case before him, the settlements were made in the ordinary course of management of newly appearing waste land for the purpose of reclamation by a cosharer in good faith for the benefit of the estate as a whole. He therefore held that the persons taking the settlement from the cosharer became raiyats, and after occupation for twelve years acquired occupancy right, and could not be ejected except in accordance with the provisions of Section 25, Bihar Tenancy Act. It will be observed that the only distinction between that case and the present case is that the leases under consideration were for the reclamation of waste lands.

18. The question as to whether settlement-holders under a cosharer can acquire a valid raiyati status and occupancy rights in my view admits of a very simple answer. It depends in turn on the question whether the settlement holders ever became the tenants of the cosharers, or remained merely the tenants of the cosharer in possession. In the latter case they might acquire occupancy status as against their own lessor; but, as they had never been tenants of the other cosharers, no length of occupation could give them any tenancy rights or status as against those other cosharers, and as regards those other cosharers they would become mere cumberers of the soil, and Section 99, Estates Partition Act, would be applicable. Now, a settlement by one cosharer cannot make the persons, inducted on the land by him, tenants of the other cosharers, unless he can be held to have represented all the cosharers upon an implied authority. The learned advocate for the appellant, in my opinion, is perfectly correct in contending that the principle in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708 , a depends on the assumption that the trespasser in possession represents the entire body of landlords for the purpose of the settlement in good faith and has no application to the case of a co-sharer, unless he also can be held to represent the entire body of landlords.

19. But where it can he held that the cosharer has an implied authority, and does represent the entire body of landlords by virtue of that implied authority, then clearly 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. Can it be said then that a cosharer, who has been placed in sole possession for convenience by mutual arrangement amongst the cosharers, has such an implied authority

20. In my opinion 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 estate lands for convenience of cultivation. It would of course only extend to acts done in good faith for the benefit of the estate.

21. 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. It is quite clear that the Legislature in framing Section 99 intended it to apply only to encumbrances, because the wording is:

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 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.

22. I wish to lay emphasis upon the use of the word other before encumbrance which clearly implies that the entire section was dealing only with encumbrances. In this view no question can arise of any conflict between the provisions of Section 99 and those of the Tenancy Acts. It will be recalled that there is a finding of fact in the present case that the settlement was in the ordinary course of management of the estate and was a prudent act having regard to the circumstances that were present. That being so, it must be held that there was implied authority. The respondents therefore became the tenants of the appellant and acquired occupancy rights under him. They cannot therefore be ejected in a suit like the present, and the appeal must fail. It must also, in my opinion, fail upon another ground, namely, that the plaintiff was allotted the lands in suit in the batwara proceedings subject to the tenancy and valued as tenanted lands. To give him khas possession in the present suit would therefore amount to reopening the partition and upsetting the arrangement made by the batwara authorities.

23. I agree with the lower Courts that the plaintiff could not upset the batwara in this way in an ejectment suit: Satish Chandra Chatterjee Vs. Kali Charan Choudhury, . He could do so, if at all, only by getting the partition set aside. He failed to do this before the batwara authorities, though he tried, and he brought no suit to challenge the decision in the collectorate partition proceedings.

24. In the Pull Bench case, Niranjan Mukherjee v. Soudamini Dasi AIR 1926 Cal. 714 to which I have already referred, and which has been relied on by the appellant, their Lordships referred to Bhup Singh v. Chedda Singh AIR 1920 All 34 and quoted an observation made in that case in the following terms:

It is immaterial whether the partition was made by the revenue authorities, or by the civil Court, or by arbitration or by private arrangement, and it is not necessary that the mortgagee should have been a party to the partition. It is one of the incidents of a mortgage of an undivided share that the mortgagee cannot follow his security into the hands of a cosharer of the mortgagor who has obtained the mortgage share upon partition. Of course, if the partion is tainted with fraud or if in making the partition the encumbrance was taken into account and the partition was made subject to the encumbrance, the result will be different.

25. In the present case the settlement was taken into account and the partition was made subject to it. I would dismiss the appeal with costs.

Agarwala J.

I agree.