BUDHU SINGH Vs. NARAIN

JUDGEMENT

(1.) This is a plaintiffs' appeal against a judgment and decree of the District Judge T.C. Sethi affirming a judgment and decree of the trial Court and holding that the plaintiffs have no right to challenge the alienation made by Hira Devi in favour of the landlord. This alienation was by way of mortgage of occupancy rights to the landlord Narain Singh on the 26th September, 1942. The collaterals of the husband Hira Devi brought a suit for declaration on the 5th January, 1943 to the effect that the mortgage would not affect their reversionary rights. The defence was that there was no joint tenancy and that the common ancestor did not occupy the land. The suit was dismissed and on second appeal to the High Court it was remanded on the 22nd, November, 1945, by Din Mohammad, J. for the trial of two issues:

(2.) On the 2nd September, 1888, there was a partition among the occupancy tenants and the land in dispute fell to the share of Lehna Singh to whose branch the husband of the mortgagor belonged. On the 22nd May, 1908, the landlords partitioned the occupancy rights and the tenancy of Hira Devi the mortgagor, fell to the share of Narain Singh alone. Exhibits D. 7 to D. 16, which are judgment in subsequent suits, show that the landlords had brought separate suits against their own tenants for enhancement of rent. On these findings it has been found by the District Judge, that there was a partition among the landlords and among the tenants and that each of the landlords had his own tenants and that Hira Devi's husband was a tenant of Narain Singh alone.

(3.) In appeal Mr. Bhatla submits, relying on a Bench judgment of this Court in 'PROPRIETORS OF MUZA SILAUTHI v. RAJ RUP', 51 Pun L R 100, that where division takes place among the joint tenants for the convenience of cultivation the jointness of the tenancy is not put an end to. But the present is not a case of that kind. Here there is a complete partition among the tenants as also among the landlords, as that each landlord has his own tenants, and as I have said before Hira Devi's husband was the tenant of Narain Singh in these circumstances plaintiffs have no right to challenge the alienation made by Hira Devi. The appeal is therefore dismissed with costs throughout.