UPENDRA PRATAP NARAIN SAHI Vs. DULHIN ISHWARWATI KUER

JUDGEMENT

(1.) The questions referred to us for decision are ;

(2.) Were the cases of Jhapsi Sao v. Bibi Aliman, 5 Pat 281 : (AIR (13) 1926 Pat 263) and Babu Ram Prasad v. Gopal Chand, 2 P. L. T. 163: (AIR (8) 1921 Pat 341) and Basudeo Narain v. Radha Kishan, 3 P. L. T. 22 : (AIR (9) 1922 Pat 62) correctly decided, assuming that the acquisitions of the occupancy holding were made after 1907 in those cases? 2. This case again raises the much debated question of the rights, on partition, of a cosharer proprietor who has purchased an occupancy holding. So far as purchases made before 1907 are concerned, it was decided by the Full Bench in Sunder Mall v. Lachhmi Tewari, 19 Pat 893 : (AIR (27) 1940 Pat 467 F. B.) that the purchasing co-sharer is not entitled to retain possession after partition. What has now to be decided is whether he is entitled to retain possession after partition if his purchase is subsequent to the amendment of Section 22, Tenancy Act in 1907. There have been a number of decisions in this Court, including those mentioned in the reference, in which it has been held that he is entitled to retain possession. There are other cases of this Court in which, although it has not been held directly that be is not entitled to retain possession after partition, it has been held that he is not entitled to retain possession after he has parted with the proprietary interest, that is to Bay, after he has ceased to be a co-sharer in the proprietary interest. It has also been held, however, that he does not, by partition, cease to be a co-proprietor. The logic of this view I find it extremely difficult to follow.

(3.) So far as the acquisition of an occupancy holding by a sole landlord, or by the entire body of co-sharer landlords, is concerned, Sub-section (1) is quite clear that the tenancy merges in the proprietary interest with the result that it cases to exist as a separate interest. The difficulty has always been with regard to the position when an occupancy holding is purchased by one of several co-sharers. Sub-section (2) attempts to define his position. In order to understand the scope of that section it is as well to bear in mind what the Privy Council baa held to be the position when a raiyati holding is purchased by a co-sharer proprietor. In the Midnapur Zamindary Co. v. Naresh Narayan Roy, 51 Cal. 631: (AIR (11) 1924 P. C. 144), their Lordships laid down the following propositions :