JAGADISH CHANDRA MUKHERJEE Vs. BIRAJA SUNDARI DASSI

JUDGEMENT

(1.) This is a petition in revision by some co-sharers in connection with a proceeding under Section 88 of the Bengal Tenancy Act.

(2.) The facts are very simple. It appears that opposite parties Nos. 1 to 6 were purchasers of certain plots from one of the co-sharers. They asked for a division of their share and distribution of rent. As this could not be done amicably under Clause (1) of Section 88, they asked for compulsory division of shares and distribution of rent under Clause (2) of the section. The learned Munsif refused the prayer on the ground that it meant that in the garb of a proceeding under Section 88 they were trying to have a partition suit decided. The learned Subordinate Judge rightly pointed out that Section 88(2), provisos, gave them the right to have their share divided and rent apportioned provided the rent for any portion did not fall below the minimum laid down in the section. Put the learned Subordinate Judge made one curious order. It was alleged that there was a previous amicable arrangement by which the parties were in possession of certain properties. In division of shares if the amicable arrangement can be adhered to up to a limit there is nothing to prevent the Court from doing so but the amicable arrangement cannot be made the basis of the division. The division must be according to the share and if by the amicable arrangement the applicants were in possession of larger or smaller shares they will be given their proper shares. Their shares are to be found out and the land for these shares are to be assigned to them and the rent also for those shares would be divided and in making such assignment of land the Court no doubt may take into account the question of actual possession at the time of division so far as it does not interfere with proper division. If any co-sharer joins with the applicants then in accordance with the section his share may also be divided but the shares of others who do not join in the application cannot be divided by the Court as in a partition suit. The broad differences between a partition suit and a division under this section is apparent, namely, that it is a division not merely between the tenants as in a partition suit but it is a division in which the landlord is a party. Secondly, by a partition between the tenants the liability for share of rent is not divided or distributed as far as the landlord is concerned but in case of a division under Section 88 the holding now divided and separated becomes a new holding and the jama or rent a new jama binding upon the landlord. The third difference is also obvious. In case of a partition suit all the co-sharers are really in the position of Plaintiffs and division by metes and bounds is made between all the co-sharers whilst in the case of division under Section 88 the division of land distribution of rent is only made as far as the applicants are concerned.

(3.) The result, therefore, is that the rule is made absolute and case is remanded to the trial Court further action in the light of this judgment, the order of the learned Subordinate Judge being modified to the extent as pointed out in this judgment. Each party will bear its own costs in this Court.