MAHADEO PRASAD SINGH Vs. JAGARNATH PRASAD

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for recovery of possession of 3 bighas 16 kathas of zerait or bakasht lands included in the allotment made to the plaintiffs in a Collectorate partition, the defendants-second-party claiming to hold it as mukarraridars under a mukarrari deed executed in their favour by the co-sharer of the plaintiffs before the partition. The facts are shortly these: The entire 16 annas of village Rupnath Chapra, tauzi No. 18235 of the Muzaffarpur Collectorate, belonged to Kalar Singh the father of defendant 1. Kalar Singh sold a 4 annas share out of his 16 annas shares in the tauzi to one Bechu Singh in the year 1903. Bechu Singh in turn sold this 4 annas share to the plaintiffs on 21 December 1917.

(2.) On 13 September 1919 defendant 1, who was the joint co-sharer with the plaintiffs in respect of a 12 annas share, granted a mukarrari to the defendants- second party of 4 bighas of the bakasht lands appertaining to his 12 annas share. In the year 1921 there was a Collectorate partition of the tauzi and a separate allotment was made to the plaintiffs as representing their 4 annas share in the tauzi and this was formed into a separate estate bearing tauzi No. 24691. Out of the bakasht land which was granted in mukarrari to the defendants-second party by the first party, 3 bighas 16 kathas was included in the allotment to the plaintiffs.

(3.) The plaintiffs instituted the present suit for recovery of direct possession of this 3 bighas 16 kathas on the allegation that they were not bound by the mukarrari and were entitled to take the land unencumbered with the mukarrari. The defence was that before the Collectorate partition there was a private partition of bakasht lands amongst the proprietor under which defendant 1 was holding the 4 bighas in dispute in severalty and that the mukarrari granted by him under those circumstances was binding on the present plaintiffs. Both the Courts below have found as a fact that there was a private partition amongst the co-sharer maliks and the learned District Judge has observed that no dispute was raised on appeal that the bakasht lands of the tauzi had been in separate possession of the parties by private arrangement. The question upon this finding is whether Section 99, Estates Partition Act, (Bengal Act 5 of 1897) applies. If this section applies there can be no doubt that the plaintiffs are entitled to direct possession. Section 99 provides: If any proprietor of an estate held in common tenancy and brought under partition in accordance with this Act has given his share or a portion thereof in patni or other tenure or on lease, or has created any other encumbrance thereon, such tenure, lease or encumbrance, shall hold good as regards the lands finally allotted to the share of such proprietor, and only as to such lands. It is contended on behalf of the appellants that the estate in question was held in common tenancy between the plaintiffs and defendant 1 before the Collectorate partition and that the mukarrari given by defendant 1 to the defendants-second party shall hold good only as regards the bakasht land finally allotted to the share of defendant 1 under the Collectorate partition and not to the land allotted to the plaintiffs.