Grimwood Mears, C.J. and Piggott, J.
1. One Ram Naresh was the occupancy tenant of a certain holding. He mortgaged the same with possession to one Dukhit Misir, at a time when such mortgages were not forbidden by law. Dukhit accordingly entered into possession of the holding lawfully with the status of a mortgagee. Earn Naresh died in the year 1913. Dukhit remained for a time in possession as a ,tenant-at-will. His rights as mortgagee had been determined because Ram Naresh had left no heir entitled to succeed to, the tenancy. Dukhit has let into possession Har Prasad Rai and others, who are co-sharers in the village, and we may take it as-found that he has let them into possession in return for a money payment made in recognition of his rights as mortgagee. The plaintiffs, came into court alleging that they were the sole proprietors of the land which formed the occupancy holding of Ram Naresh. They claimed that Dukhit was their tenant-at-will, and that they were entitled to eject him under the ordinary procedure prescribed by the Local Tenancy Act, No. II of 1901. Along with Dukhit they claimed to eject Har Prasad Rai and others who have been described as persons let into possession by Dukhit. In reply to the suit Dukhit said that he was no longer in possession, and had no longer any concern with the-land, that he had been paid off by Har Prasad Rai and others and that the plaintiffs might settle accounts with them. Har Prasad and others pleaded that they were not merely co-sharers in the village, but co-sharers along with the plaintiffs, in the proprietary rights over the particular land in suit. They claimed, therefore, that having induced Dukhit, no matter by what means, to surrender the land into their possession and occupation, they became entitled to hold the same as their khudkasht. In any event they contended that the plaintiffs had no right to sue them for an ejectment in a rent court. The-Assistant Collector who tried the case seems to have gone very-carefully into the evidence and to have framed proper issues. There has been some controversy before us whether, on the-, pleadings of the two parties, Section 199 of the Tenancy Act' did or did not apply; if it did apply, then the question of proprietary title was tried by the Assistant Collector, and there has ' been no contravention of the provision's of that section. The conclusion arrived at by the Assistant Collector was that,, although according to the village records both the plaintiffs and the contesting defendants, Har Prasad Rai and others, held proprietary rights in respect of the land in suit, nevertheless there had been a private partition amongst the co-sharers, not carried out through the agency of a Revenue Court, and not recognized in the revenue papers, according to which private partition the plots of land in suit constituting the occupancy holding of Ram Naresh had been assigned wholly to the plaintiffs. On this finding, principally, the Assistant Collector decreed the suit for ejectment. There was an appeal by Har Prasad Rai and his co-defendants to the court of the District Judge. The District Judge, affirming the findings of the Assistant Collector, dismissed the appeal. On a second appeal being brought to this Court, a learned Judge of this Court has reversed the findings of both the courts below, and has dismissed the suit. We are not quite clear as to the attitude of the learned Judge of this Court with regard to the finding of the lower appellate court on the question of the separate title of the plaintiffs. He treats that finding as amounting to no more than this, that there had been an arrangement for convenience of collection amongst the various co-sharers of the mahal, by which the right to collect rent from Ram Naresh had been assigned to the plaintiffs alone. He clearly intends to hold that such an arrangement would not amount to a partition of the land amongst the various co-sharers, or to a surrender on the part of Har Prasad and others of their interests in the proprietary rights over the land in suit, in return for a similar surrender on the part of the plaintiffs of their interests in the proprietary rights over other lands forming part of the same mahal.
2. We do not think, however, that the finding of the learned-District Judge can be interpreted in the way in which it has been in this Court. The finding itself is embodied in the words:--'I bold that under a private partition the plaintiffs' respondents are the proprietors in exclusive possession of plot No. 879 and that they are entitled to eject the defendants appellants.'' Moreover, this finding is to be read in connection with the judgment as a whole, and also with the judgment of the Assistant Collector which was then under appeal. We think that both the. trial court and the lower appellate court intended to find, and did find, that there had been a private-partition of the mahal by virtue of which the land in suit had been assigned exclusively to the plaintiffs.
3. It will hardly be contested that the co-sharers in a mahal have a right to effect a partition by private arrangement amongst themselves, and that it may be the most convenient method of effecting such a partition to assign the entire holding. of a particular tenant to a particular group of co-sharers. The only difference between a partition effected by private arrangement and one properly carried out under the orders of the court is that the incidents of the private partition are difficult to prove, and that confusion and litigation may arise afterwards owing to the preparation of village records which are at variance with the actual facts. We cannot, however, in this case allow the clear finding of the lower appellate court in favour of the plaintiffs on this question of partition to be disregarded.
4. The other point taken by the learned Judge of this Court is that in any event the defendants Har Prasad Rai and others.; are not tenants of the plaintiffs, and he seems to think that there was something dishonest in the procedure adopted by the plaintiffs in bringing the present suit as a suit for ejectment of tenants, in the rent court, instead of proceeding against Har Prasad Rai and others as rival claimants to the proprietary rights, by a corresponding suit instituted in a court of civil jurisdiction.
5. It seems to us at least doubtful whether, in the event of the plaintiffs having adopted the course suggested by the learned Judge of this Court, Har Prasad Rai and his co-defendants would not at once have taken shelter behind Dukhit and set up the plea that unless and until Dukhit's tenancy was extinguished, no suit for ejectment would lie elsewhere than in the rent court. At any rate, the position of the plaintiffs is, in our opinion, clear and maintainable on the facts alleged by them and found in their favour. Apart from the provisions of Section 34 of the Tenancy Act, when once the court has found in favour of the exclusively proprietary title of the plaintiffs, there remains the fact, alleged in the pleadings and not seriously controverted, that Har Prasad Rai and his co-defendants were let into possession by Dukhit. Either they are, transferees of whatever rights Dukhit possessed under his mortgage, in which case they are just as much the tenants-at-will of the plaintiffs as Dukhit himself was, or they are in the position of sub-tenants who have paid Dukhit a premium instead of an annual rent. This has been made still clearer by pleadings entered by Har Prasad Rai and his co-defendants in the 3rd paragraph of their written statement. We think the learned Judge of this Court was wrong and that he should not have interfered with the decision of the lower appellate court. We sot aside the decree of this Court and restore that of the lower appellate court, allowing the plaintiffs their efects of both hearings in this Court.