1. This is a defendant's appeal arising out of a suit for possession of two plots. These belonged originally to Mahadev and Ram Gharib as sir. They mortgaged them in 1303 Fasli to the defendant's father. In 1326 Fasli partition took place and the plots in suit were transferred to the plaintiffs. In the partition proceedings one Shiv Murat was recorded as the tenant-in-chief.
2. The plaintiff came into Court on the allegation that he had Shiv Murat ejected by a Revenue Court and that the defendant has since taken possession of the plots. Both the Courts have decreed the suit. In appeal it is contended that when the plots, which admittedly before partition were the sir of the mortgagor, were transferred to the share of another co-sharer the mortgagor at once became their ex-proprietary tenant and that he and his mortgagee were entitled to remain in cultivating possession, and that this, was what actually happened.
3. Section 126 of the Land Revenue Act provides that when land held as sir by any co-sharer is included at partition in the portion allotted to another co-sharer it is only when the former continues to cultivate it after partition that he becomes its ex-proprietary tenant. It is clear from the partition record that in the present case the former proprietor did not continue to cultivate the land. He never attempted to assert his ex-proprietary rights and must, therefore, be taken to have surrendered them. The defendant had no right to take possession of the plots. The appeal fails and is dismissed with costs.