Jwala Prasad, Acting, C.J.
1. These are appeals under the Letters Patent from a decision of Mr. Justice Adami, dated the 12th August 1920. By his decision Mr. Justice Adami upset the decision of Mr. Boyee, District Judge of Shahabad, and restored that of the Munsif of that District, with the result that the plaintiffs’ suit has been dismissed.
2. The suit arises out of delivery of possession under a batwara which took place on the 24th February 1916, the disputed lands having fallen into the takhta of the defendants. After the delivery of possession the defendants instituted criminal proceedings under Section 144 of the Code of Criminal Prosed are in which an order dated the 2nd June 1916 restraining the plaintiffs from using the lands in question was passed. The plaintiffs and defendants were co-sharers in the estate and had held a mortgage of the 4-annas share of another co-sharer of the villages Semraon and Akhari. The plaintiffs purchased the occupancy holdings of certain tenants under kobilas and also took certain plots of land in rehan from different persons. The mortgagors redeemed the mortgage and brought separate suits against the plaintiffs, the defendants and others, in the Court of the Subordinate Judge at Arrah. That case was fought up to the High Court. The High Court held that the mortgagors were entitled to treat the holdings purchased by the mortgagees as accessions to the mortgaged property and to obtain possession of them on paying the purchase-money. The decision of the High Court is reported as Ram Brich Narayan Singh v. Ambika Prosad Singh 19 Ind. Cas. 90 : 17 C.W.N. 586 at p. 587, The purchase-money was, not paid and the plaintiffs continued in possession of the holdings. In the Survey and Settlement Record the lands were shown as bakasht and in possession of the plaintiffs under Section 22(2) of the Bengal Tenancy Act. After the publication of the Record of Rights there was a Collectorate partition under the Estates Partition Act in 1916 between the co-sharers. Under Section 49 the Survey Record of Rights was accepted as the basis of the partition. The lands in dispute 9.65 acres in area which were recorded in the Survey as bakasht and in possession of the plaintiffs under Section 22(2) were allotted to the patti of the defendants. The plaintiffs claim to hold the land in their possession under Section 22(2) on the strength of the Survey Record of Rights as well as the batwara khatian which followed the Survey. The defendants, on the other hand, claim to hold the land in their possession as being bakasht or zerait of the proprietors. They assert that whatever rights the plaintiffs may have acquired by the purchase prior to partition were done away with by the batwara proceedings, They also dispute the plaintiffs’ right to institute the present suit and refer to Section 119 of the Estates Partition Act. The contentions of the defendants succeeded before Mr. Justice Adami, and the plaintiffs challenge before us the soundness of the view taken by that learned Judge.
3. The strongest point urged by Mr. Kulwant Sahay on behalf of the defendants in support of the judgment is that based on Section 119 of the Estates Partition Act. It is said that the present suit virtually seeks to upset the valuation of the allotment of the lands by the batwara proceedings and that the plaintiffs, who were parties to the proceedings, are estopped from claiming the lands as against the entries made in the batwara khatian, describing the land as the bakasht of the proprietors and as having fallen into the pattis of the defendants. It is also urged that the present action seeks to disturb the direct possession of the land in suit awarded to the defendants under Section 94, Chapter X, of the Estates Partition Act. The ingenious argument of Mr. Kulwant Sahai lent great colour to the simple point involved in this contention. True, the plaintiffs being co-sharers and parties to the partition proceedings are estopped from claiming otherwise than the Record of Rights, as approved by the batwara proceedings, purports to give them. I am in full accord with the view expressed in the case of Baldeo Sahai v. Brijnandan Sahay 43 Ind. Cas. 359 : 3 P.L.W. 266 : (1918) Pat. 164 that a co-sharer is not permitted to show that land entered as raiyati land was, as a matter of fact, zerait land. This is, however, not the scope of the, plaintiffs’ suit. The plaintiffs’ case, if I understand it aright, is founded upon the batwara khatian and the description of the lands mentioned therein. That khatian has, at observed above, simply adopted the Survey Record of Rights. The lands no doubt in both the Survey Record of Rights and batwara khatian have been described as bakasht lands. Both the records state that the same are in possession of the plaintiffs as purchasers thereof. The Survey Record makes it still clearer by describing the possession of the plaintiffs to be under Section 22(2) of the Bengal Tenancy Act. The batwara khatian has, therefore, to be interpreted with the help of the Survey Record of Rights, for under Section 49 the entire Record of Rights was accepted for the purposes of the petition, and under the subsequent section there in nothing to show that the Record of Rights was in any way varied The plaintiffs nowhere say that they have been aggrieved in any way by the batwara proceedings. In paragraphs 7 and 8 the plaintiffs have clearly based their claim upon the batwara proceedings and say that their former possession was continued by the batwara proceedings. Their grievance originates after the delivery of possession and the termination of the batwara proceedings and the order passed under Section 144 of the Code of Criminal Procedure at the instance of the defendants. In this view Section 119 can be of no avail to the defendants nor need we consider it Mr. Kulwant Sahai has however, failed to show what particular order the suit of he plaintiffs seeks to set aside. Section 119 acts as a bar to a suit being brought against certain orders of the authorities passed under the Estates Partition Act. If the defendants seek to bar the plaintiffs’ suit under that section they must clearly show in what respect the order of the Revenue Authorities is affected or sought to be set aside in the present suit. This Mr. Kulwant Sahai has failed to do The contention must, therefore, be overruled.
4. The next contention is upon the status of the plaintiffs with respect to the lands in suit. It is said that the lands were 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. This would be so if the land was the bakasht of the proprietors prior to the partition, it is admitted that the land, formed originally the occupancy holdings of the tenants of the village. They were purchased by the plaintiffs, when they were part proprietors of the village and had held the other shares as mortgagees. Reliance has been placed upon the judgment of the High Court at Calcutta referred to above [Ram Brich Narayan Singh v. Ambika Prosad Singh 19 Ind. Cas. 90 : 17 C.W.N. 586 at p. 587] in order to show that the lands were purchased by the 16-annas proprietors and the status of the proprietors holding the lands was that described in Section 22(1) of the Bengal Tenancy Act and not in Section 22(2), It is, how ever, said, the difference between the two clauses is that, under the former, when the 16-annas proprietor purchases a holding of a tenant, the interest of the land lord and the raiyat become united in the same person. In other words, the tenancy right is merged in the proprietary interest, whereas under Clause (2) when a part proprietor of a holding purchases the holding he is entitled to hold possession of the same subject to the payment of the proportionate rent to the other co -proprietor, Mr. Kulwant Sahai says that no rent was ever paid for this holding by the plaintiff to any of the proprietors and, therefore, Clause (2) of Section 22 does not apply. The circumstance under which no rent was paid was fully explained in the decision of the High Court relied upon by Mr. Kulwant Sahai. In that litigation both the plaintiffs and the defendants in the present case were defendants. Chatterji, J., one of the Judges who decided that case, observed:
The defendants, though holding different interests in the mahal and in the mortgage, represented between themselves the entire interest of the landlord for the time being when the purchases were made. There was no one else to whom the portion of the rent which was payable for the lands purchased by them, could be paid during the subsistence of the mortgage.
5. The mortgage has been redeemed and the plaintiffs and the defendants are not the entire 16 annas proprietors of the Mouza. The mortgagor is also in possession of certain shares in the village. The question is not whether any rent was ever realized but whether any rent was payable. There can hardly be any doubt that the purchase in the present case was by the plaintiffs co-sharers, and they were liable for the payment of the proportionate rent to the other co-sharers, but, in the circumstances set forth in the judgment of the High Court, there was no rent due from them on accounts being taken between the several proprietors and the mortgagees. The Survey Record of Rights states clearly that the possession of the plaintiffs was under Section 22(2) No doubt, that is the states described under the law, but the Survey Authorities being conversant with the Bengal Tenancy Act must be presumed to have fully appreciated the true scope and meaning of Clauses (l) and (2) of Section 22, The real import of the entry is one of fact that the plaintiffs as part proprietors had purchased the holdings and were in possession thereof as part proprietors. In this view the Survey Authorities made the aforesaid entry that their possession was under Section 22(2).
6. It is then contended that, whatever the possession or status of the plaintiffs might have been before the partition, the partition effected a complete change in that status, inasmuch as the plaintiffs ceased to be co-proprietors after the partition, separate pattis or estates having been allotted to the several co-proprietors. The plaintiffs are not now the co proprietors in the pattis allotted to the defendants wherein the land in dispute has fallen, and consequently they cannot now claim possession of the land under Section 22(2). To this I replied in the case of Ram Prasad v. Gopal Chand 58 Ind. Cas. 955 : 2 P.L.T. 163 at p. 164, in the following words:
It will be anomalous and indeed unjust to permit a co-proprietor, after the kasht lands in the estate have been purchased by another co-proprietor at great expense, to go to the Collectorate partition and to claim the same as bakasht and to share in the acquisition to which he has not contributed a single far thing. The section clearly empowers a co-proprietor to bold possession of the kasht land purchased by him, the only condition imposed upon him being that be should pay rent therefor to his co-sharers. There is no limit of time of his possession nor is it controlled by any event, such as the partition of the estate. If his possession was to remain only for so long as the estate was not partitioned, it would have been clearly and unmistakably expressed by the Legislature. I do not, on principle, see any reason why a flourishing co-sharer of a small fractional share in the village should be deprived of an opportunity of purchasing lands in his occupancy holdings in the village, just in the same way as a stranger would be allowed to do. Neither law nor equity would make him worse than a stranger.
7. The authorities quoted by Mr. Kulwant Sahay have also been dealt with in that judgment,
8. The term kasht or bakasht also does not at all embarrass me in any way. They are words of art introduced for the purpose of understanding the possession of lands by the proprietors and the tenants. The former term is one of recent creation by the Settlement Authorities. The latter, in its true sense, equally applies to the cultivation of lands by the proprietors and the tenants. However, the question of status does not arise in the present case. The real question is, whether the plaintiffs are entitled to continue to bold possession of the land in the same way as they used to do before the partition of the estate, I have discussed in detail the question in the case referred to above [Ram Prasad v. Gopal Chand 58 Ind. Cas. 955 : 2 P.L.T. 163 at p. 164] and I do not want to repeat my arguments here. For the sake of brevity I would prefer to refer to the said judgment. I have no doubt that the plaintiffs are entitled to hold possession of the land on payment of rent to the defendants under Section 22(2) of the Bengal Tenancy Act.
9. I would, therefore, respectfully differ from the view taken by my learned brother, Mr. Justice Adami, and would decree these appeals and consequently the suits of the plaintiffs with costs throughout.
10. I agree.