GULSHER KHAN Vs. NAJIB-ULLAH

JUDGEMENT

(1.) This appeal has been referred to a Bench of three Judges on account of conflicting decisions of this Court upon the main question which arises in the appeal. That question, shortly stated, is whether a co-sharer" in an agricultural holding is barred by the provisions of Section 32 of the Tenancy Act from maintaining a suit for declaration of his rights in the holding. In the case Achhey Lal V/s. Janhi Prasad (1906) I.L.R. 29 All. 66 it was held that a suit of this nature could not be maintained having regard to the provisions of the section quoted. In the cases Ashiq Husain V/s. Asghari Begam (1907) I.L.R. 30 All. 90, and Ayub Ali Khan V/s. Mashuq Ali Khan Weekly Notes, 1908, p. 281, a different view was taken and it was held that the section does not preclude a plaintiff from obtaining by suit a declaration of his right to a share in a holding. In the last two cases it does not appear that the decision in Achhey Lal V/s. Janki Prasad was cited and no reference is made to it in either of these cases. Section 32(1) does not forbid the co-sharers. In a holding dividing the holding or making a distribution of the rent amongst themselves. It merely declares that such division or distribution shall not he binding on the land-holder unless it is made with his consent. Sub-section (2) enacts that no suit or other proceeding for the division of a holding or distribution of the rent thereof shall be eutertained in any Civil or Revenue Court. In the case Achhey Lal V/s. Janki Prasad it was observed that a Civil or Revenue court should not entertain a suit or other proceeding which has the effect of causing the division of a holding. With this observation I entirely agree, and if I were of opinion that a declaratory decree as to his rights obtained by one co-sharer in a holding against the other co-sharers would necessarily result in a division of the holding or a distribution of the rent, I should have no hesitation in accepting the view expressed in the case last mentioned. But it appears to me that a declaration as to his rights obtained by one co-sharer against the other co-sharers does not and cannot effect any demission of the holding or distribution of the rent thereof. Notwithstanding such a declaration the holding would remain as before a single holding and the co-sharers would continue jointly responsible to the land-holder for the rent. No doubt, if having got his declaration the plaintiff attempted on the strength of it to sue for an actual division of the land or a distribution of the rent, his suit would be barred by the provisions of Section 32(2). To hold that a co- sharer in a holding, who is deprived by the other co-sharers of the whole or a portion of his interest therein, cannot maintain a suit for a declaration of his rights would amount to a denial of justice, as, so far as I can see, he would have no other remedy. Section 22 provides that when an ex-proprietary tenant, an occupancy tenant, or a non-occupancy tenant dies, his interest in the holding shall devolve on his male lineal descendants in the main line of descent. Under this section if a tenant dies leaving two sons, his sons become co-sharers in the holding. If one son usurps the whole holding to the exclusion of his brother, the law could never have intended that in such a case the latter should be left entirely without a remedy. The court of first appeal held that the present suit, which was brought by the plaintiff's respondents, not for an actual division oft the holding, but for a declaration against their co-sharers as to the extent of their interest therein, was not maintainable having regard to the provisions of Section 32 and the ruling in Achhey Lal V/s. Janki Prasad Our learned colleague whose judgment is under appeal sustained the plea that the court of first appeal was wrong in so holding and remanded the case for trial on the merits under Section 562 of the former Civil P. C.. In the appeal before us the ground taken is that "the suit being one virtually for division of an occupancy holding is barred by Section 32 of the Agra Tenancy Act." In my opinion the suit is in no sense, virtually or otherwise, a suit to divide a holding. I concur in the judgment of our learned colleague except in one respect only, namely, his attempt to distinguish the case relied on by the court of first appeal, For these reasons I would dismiss the appeal with costs. Griffin, J.

(2.) I have nothing to add to the judgment of my learned brother Aikman and I concur in the order proposed by him. Knox, J.

(3.) I agree. The order of the Court is that the appeal is dismissed with costs.