KAMESHWAR SINGH Vs. JHALAK SINGH

JUDGEMENT

(1.) This is an appeal from a preliminary decree in a partition suit in which the plaintiffs, the appellants in this Court, were the applicants for partition. Respondents 6 to 8, defendants 6 to 8 in the suit, did not contest the suit or the appeal, but respondents 1 to 5, defendants 1 to 5 in the suit, whilst admitting the proportion of the appellants share and also their right to have partition, denied that, that right extended to the partition of the right to possession of any of the lands in the Tauzi in question on the grounds that the co-sharers, the plaintiffs, defendants 1 to 5 and defendants 6 to 8 were the proprietors each as to one-third in the Tauzi in suit the tenancy right in which was acquired by defendants 1 to 8 at a time when defendants 1 to 5 held the appellants share in ijara.

(2.) It appears that the method by which the defendants claimed to have acquired possession and the right to retain possession of the land of the tenants was that as to part thereof they had instituted a suit against the tenant for the 16-anna arrears of rent and having obtained a rent decree against the tenants they sold and purchased the tenant's occupancy holding, the purchase price being set off against the decretal amount. As to the remaining part of the tenancy rights they were acquired by the defendants by a surrender made to them by the tenant, the Co-operative Bank, in consideration for the relinquishment by the defendants of certain 16-anna arrears of rent. By an arrangement between the two sets of defendants, defendants 1 to's obtained possession of a part of the Tauzi in suit, settled a part thereof with tenants, gave a second part in exchange to a third party and took (possession themselves of a third part in accordance with Section 22(2), Bihar Tenancy Act. Defendants 1 to 5 claimed that under Section 22(2), Bihar Tenancy Act they were entitled to hold as their own the land so acquired by them and that the plaintiff was not entitled to obtain partition thereof.

(3.) The learned Subordinate Judge in reliance upon the decision of a Division Bench of this Court an Dhaneshwari Kuar V/s. Chandradhari Singh A.I.R.1936 Pat. 317 decided the point in favour of the defendants.