KALI CHURN CHOWDHURY Vs. MOHANANDA DATTA

JUDGEMENT

(1.) This is an appeal by the second and third defendants in a suit for partition of joint property. The land in dispute is comprised in an estate held by the fourth and fifth defendants as proprietors. On the 27th February 1894, the proprietors granted a lease to the third defendant, apparently for the benefit of himself and his brothers, the first two defendants. On the 31st August 1904 the fourth defendant gave a lease to the first three defendants in respect of his half share. This lease, it has been alleged, was granted for building purposes. On the 21st February 1905, the fifth defendant granted a putni to the first three defendants in respect of the half share held by him as proprietor. On the 6th December 1909, the fourth defendant granted a similar putni to the plaintiffs in respect of his half share. The putni leases, it has not been disputed, were superior to the leases previously granted by the proprietors. On the 2nd June 1910 the plaintiffs commenced the present suit for partition as against the first three defendants. They also joined the proprietors as fourth and fifth defendants, but no relief was claimed against the latter. The contending defendants have resisted the claim for partition on the ground that the suit is not maintainable. Their argument is that as they are lessees of the entire property under the lease of the 22nd Febrlary 1894, the plaintiffs, as putnidars of a half share, are not entitled to claim partition. In our opinion, there is no force in this contention.

(2.) It has not been disputed that as the plaintiffs and the first three defendants are putuidars, each in respect of one-half share, the plaintiffs are, prima facie, entitled to claim partition against the defendants. When A and B are in joint possession as joint owners, each is ordinarily entitled to claim partition against the other, and it is no valid answer to a claim for partition by A that B has acquired a subordinate interest over the whole property. We are unable to uphold the contention that as the first three defendants, in addition to their putni interest, have also a subordinate interest which extends over the entire property, the right of the plaintiffs to claim partition cannot be enforced. Neither authority nor principle has been adduced in support of this proposition. It was ruled by the Judicial Committee in the case of Bhagwat Sahai v. Bipin Behary Mitter 7 Ind. Cas. 549 : 37 C. 918 at p. 927 (P.C.) : 12 C.L.J. 240 : 14 C.W.N. 962 : 8 M.L.T. 228 : 7 A.L.J. 1137 : 12 Bom. L.R. 997 : 20 M.L.J. 907; (1910) M.W.N. 691 : 37 I.A. 198 where their Lordships affirmed the decision of the Full Bench in Hemadri Nath Khan v. Ramani Kan a Roy 24 C. 575 : 1 C.W.N. 406 that the right of partition exists when two parties are in joint possession of land under permanent titles, even though those titles may not be identical or of co-ordinate degree. In the case before us, the plaintiffs and the first three defendants are both holders of putni tenures; they are in possession as putnidars and their interests are of the same grade. Consequently, as between them the right of partition exists. There is no intelligible principle on which the view can be maintained that the right of the plaintiffs to claim partition has become unenforceable because the defendants have an additional right, namely, right as subordinate tenants. Property held in co-tenancy (subject to exceptions immaterial for our present purpose) may be partitioned by suit and the only essential is that the property sought to be partitioned is held in co-tenancy. This requirement is fulfilled in the case before us. Partition is the process by which property held by two or more persons in co-tenancy is converted into estates in severally and thereby divided among them, with the result that the land which before partition was held and enjoyed jointly is after partition held and enjoyed by the different parties according to the allotments made by Court. If partition is allowed in the case before us, the result will, be that the land will be demarcated. The defendants will, after partition, become tenants under the plaintiffs in one specified half on the basis of their leases of 1894 and 1904, while in the other separated half they will be tenants under themselves. The position, consequently, will be that, after partition, the plaintiffs will be entitled to treat the defendants as their tenants in respect of a specific parcel of land instead of, as now, tenants in respect of one-half share of joint and undivided land. It is not difficult to imagine that after partition has been so effected, the plaintiffs may have advantages which they do not now enjoy; at the same time, during the continuance of the leases of 1894 and 1904, there will be no interference with the actual enjoyment of the land by the defendants, although they will be in occupation of one demarcated half as their own land and of the other half as tenants under the plaintiffs. We are consequently of opinion that the Courts below have rightly held that the suit is maintainable.

(3.) The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.