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Raghunath Kalwar and ors. Vs. Bala Deen Kalwar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.398
AppellantRaghunath Kalwar and ors.
RespondentBala Deen Kalwar and ors.
Excerpt:
agra tenancy act (ii of 1901), section 32 - occupancy holding, division of, among tenants not binding upon zamindar but binding upon tenants--partition of holding with the consent of zamindar, effect of. - .....divide a holding amongst them selves, in my opinion it goes too far. there is no objection to joint tenants agreeing among themselves to occupy and cultivate distinct parts of the joint holding, provided that their so doing in no respect prejudices the rights of the landholder. under such an agreement, the tenants continue to be liable to the landlord for the entire rent and the arrangement between them is not a partition which is enforceable as between them and the landlord. a partition to bind the landlord must be a partition with his consent. i, therefore, would dismiss this appeal with costs.banerjee, j.2. i also am of opinion that there is no force in this appeal. the former suit was not one for partition of a holding or the distribution of the rent thereof, but was a suit for.....
Judgment:

John Stanley, C.J.

1. I am of opinion that the judgments of the learned Judges of this Court from which this appeal has been preferred are not open to objection. They have very fully dealt with the facts and the law, and it is unnecessary for me to add anything to what they have said, save and except that I desire to make an observation upon the judgment in Achhey Lal v. Janki Prasad 29 A. 66 : 3 A.L.J. 735 : A.W.N. (1906) 274, to which judgment I was a party. In that case it was held that 'Neither a Civil nor Revenue Court can partition or divide an occupancy holding; such partition or division can only be affected out of Court with the consent of the land-holder.' If these words are interpreted as meaning that tenants cannot agree to divide a holding amongst them selves, in my opinion it goes too far. There is no objection to joint tenants agreeing among themselves to occupy and cultivate distinct parts of the joint holding, provided that their so doing in no respect prejudices the rights of the landholder. Under such an agreement, the tenants continue to be liable to the landlord for the entire rent and the arrangement between them is not a partition which is enforceable as between them and the landlord. A partition to bind the landlord must be a partition with his consent. I, therefore, would dismiss this appeal with costs.

Banerjee, J.

2. I also am of opinion that there is no force in this appeal. The former suit was not one for partition of a holding or the distribution of the rent thereof, but was a suit for exclusive possession of certain plots of land which the then plaintiff claimed to be his separate property. The Court which tried that suit had jurisdiction to entertain it and its judgment has the effect of res judicata. I agree in dismissing the appeal.

3. The order of the Court is that the appeal be dismissed with costs.


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