1. This appeal involves a very short point and it is one of law. On the death of one Charan who was recorded as an ex-proprietary tenant of 21 and odd bighas of land, his brother's sons and his son's sons had a dispute about the division of the tenancy. They went to the Revenue Court and ultimately came to an agreement which took the shape of a document in writing registered. By this document plaintiffs, who are respondents in this Court, were allowed 7 bighas 1 biswa of land. They came to Court with the allegation that the defendants kept them out of possession of this 7 bighas and odd area and were liable to pay damages. The plaintiffs accordingly sued for recovery of possession and for recovery of Rs. 70 as damages.
2. The Court of first instance dismissed the suit in toto. One of the plaintiffs Chet Ram, appealed, and he asked for damages only. The first ground of appeal was that the suit could not faillin its entirety. The learned District Judge was of opinion that the suit could not fail in toto. He found that the plaintiffs were at least entitled to joint possession, if they were not entitled to separate physical possession. He accordingly assessed the damages and decreed the claim for a small amount, viz., Rs. 17-8-0.
3. In this Court the learned Counsel for the defendants appellants contended that the entire suit was unmaintainable having regard to the provision of Section 32 of the Tenancy Act.
4. I cannot agree with this contention. Section 32 of the Tenancy Act bars a suit for partition of a holding. It does not bar the maintenance of a suit for damages or profits where one of the parties entitled to a holding is kept out of possession by his co-tenants. The principle of the Pull-Bench case of Najibulla v. Gulsher Khan (1909) 31 All. 348 applies. I need not express any opinion as to whether a suit for recovery of possession over 7 bighas of land could have been maintained in spite of Section 32 of the Tenancy Act, because that question does not arise in this case.
5. In my opinion these is no force in the appeal and it is hereby dismissed with costs.