BEHARI Vs. MTMUTHRA

JUDGEMENT

(1.) THE plaintiffs shared in the cultivation of the occupancy tenancy of one Gulzari during his life-time. On the death of Gulzari his widow had a life-interest in the tenancy under the terras of Section 24, Agra Tenancy Act. She brought a suit for partition of the holding impleading the plaintiffs, and as a result of that suit the holding was divided and a portion remained in the cultivation of the widow, who subsequently associated with herself in cultivation other persons who are defendants 2 to 4 in this suit. THE landlord agreed to this arrangement. THE plaintiffs have now brought a suit for a declaration that on the widow's death defendants 2 to 4 will have no rights in the tenancy as against themselves, the plaintiffs, who shared in the cultivation of the last male-holder. THE suit was decreed by the Munsif, but his decision has been reversed in appeal by the District Judge. THE District Judge was of the opinion that the division of the holding created a new tenancy, and the plaintiffs rights not having been maintained at the time of the partition have now been lost to them. In argument in defence of this judgment we have been referred to Section 121, Agra Tenancy Act; but in our opinion that section has no connection with the present suit, as it is not a suitbrought by a tenant against the land-holder or any person claiming to hold through the land-holder for a declaration of his right as a tenant, and we cannot agree with the learned District Judge that this is a suit which could have been brought under the Agra Tenancy Act. THE view taken by the learned Munsif on that as on other points is correct. On the question of partition the Munsif says: Partition would make, no difference so far as the rights of the plaintiffs are concerned. Partition would merely change the mode of enjoyment by defendant 1 (the widow), but it would not confer on her greater rights than what she had before partition; nor would it change the mode of succession given in Secs.24 and 25, Tenancy Act.

(2.) IN our opinion the Judge was in error in allowing the appeal against the Munsif's decision which is a correct statement of the law. The plaintiffs were entitled to the decree awarded to them by the Court of the first instance. We allow this appeal, set aside the decision of the lower appellate Court and restore that of the Court of first instance with costs throughout.