HARAN CHANDRA SAHA Vs. BEHARI LAL BHUMIA

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiffs for eject meat of defendants 1 and 2 from the lands in suit on the allegation that the holding was abandoned by the former tenants and the defendants as transferees from them of the holding which is a non transferable one are liable to be ejected. The plaintiffs were cosharer landlords with some other persons in respect of a holding within more than one estate. The original tenants Kokai and Mehar Ali transferred to the defendants appellants a portion of the holding comprising settlement plots 189 and 190 of mauza Kedarpur appertaining to Estate No. 4054 and the defendants were in possession of that portion of the holding. Subsequently there was a partition of this estate under the Estates Partition Act among the cosharer landlords of the holding. The disputed plots fell to the saham of the plaintiffs alone. Thereupon the plaintiffs claimed ejectment of the defendants on the ground that they were trespassers being the transferees of a nontransferable occupancy holding. Both the Courts below have decreed the suit.

(2.) Defendants 1 and 2 have appealed and it has been argued on their behalf that the view of the law taken by the Courts below is erroneous and should be reversed. The sole point involved in this case is one of construction of Section 81, Estates Partition Act 5 of 1897 Bengal Council. The plaintiffs case is that before the holding was split up by the Collector among the different cosharers, the defendants being transferees of a portion of it, the plaintiffs had no right to eject them. But after the partition the plots now in possession of the defendants being allotted solely to the plaintiffs formed into a new holding and the plaintiff being the sole landlords of that holding have obtained the right of ejecting the defendants as transferees of that newly-formed holding. The defendants on the other hand contend that the effect of the partition is to divide the landlord's interest in the lands among the cosharer landlords, but not to destroy the character of the holding as it stood before. In my opinion the view taken by the Courts below seems to be correct and should be upheld. Under Section 81, Estates Partition Act, the right to split up for the purposes of partition any tenure or holding is given to the Collector. But the right should be exercised only when it is reasonably necessary to do so in order to effect an equitable partition. And further, if the tenure or holding is split up, the existing rent should be apportioned among the several parts into which it is divided. The section further provides that before such a division of the tenure or holding is effected notice ought to be served on the tenants and that objections by them, to such division should be heard. The provisions standing by themselves clearly indicate that the law confers upon the partition authorities the power to divide any tenure or holding into separate parts apportioning the rent to be attached to each such part and giving an opportunity to the tenants to raise any objection to such division. All these provisions are-necessary only in a case where it is proposed to create several holdings out of one holding. If, the intention was to keep the holding intact and only to divide the superior interest of the landlords it would not have been necessary to hear the-tenants with reference to the division. The word used in the section is "split" which lexicographically means to cause to part asunder or to divide by a quick or sharp cut." The addition of the word "up" intensifies the meaning of "split" and it has been used in my judgment in the sensa of severing completely in several parcels the holding which before the partition was held under several persons. This, view has been taken by this Court in the case of Protap Chandra Das V/s. Kamala Kanta Shaha [1906] 10 C.W.N. 818. The facts are similar to those in this case-with a slight difference to which reference will be made below. The learned Judges observed that the partition made by the Collector had the affect of dividing the old holding into new ones and the plaintiffs became the sole landlords of 5 kanis held by the defendants and which defendant 6 clearly had abandoned.

(3.) I This case has been attempted to be distinguished on the ground that in that case the Collector had made the partition before the defendants purchase. I fail to see what difference in principle a which underlies the decision this fact is calculated to make. From the judgment it does not appear that this special fact had any influence on the view which was taken of the law in that case. The mere fact that the Collector proposes allotment does not change the position of the parties before such allotment is sanctioned by the higher authorities. It makes no difference whether the defendants entered upon the land previous to the allotment made by the Collector or after it. There is an unreported decision of this Court which was placed before the lower appellate Court and which took the same view, though in that case it was subsequent to Protap Chandra Das's case [1906] 10 C.W.N. 818 the latter case was not cited. It has got this merit that two other learned Judges of this Court came to the same conclusion independently and uninfluenced by the view taken in the previous case. In Appeal from Appellate Decree No. 1425 of 1907, decided on 14 April 1909, Chitty and Vincent, JJ., observed that it was urged before them that the Deputy Collector had no power to split up the holding of the original tenants for the purposes of partition but no tangible reason had been given to show why he had not that power.