1. This is a plaintiffs' appeal under the following circumstances: The plaintiff's and the defendants are descended from a common ancestor, Puranmashi. It appears that the parties are joint owners of several occupancy holdings, and with respect to three of them, Nos. 436, 440 and 478 situated in Mauza Meohar in the District of Benares, the plaintiffs' allegation is that many years ago the parties, namely, the plaintiff's or their ancestors on the one side, and the defendants or their ancestors on the other, divided that holding among themselves, and that the plaintiffs' share in the occupancy was as set out in Sch. B and the defendants' as set out in Sch. C; that the plaintiffs had in September 1922, been dispossessed by the defendant; hence the plaintiffs were entitled to be awarded possession as their exclusive cultivatory holding. The defence raised to this claim was that the plaintiffs and defendants were joint and that there had been no partition whatever between the parties, and that the share of the plaintiffs was 1/4. The defendants kept a discreet silence about their being in exclusive possession of that portion of the plots set out in Sehedule C. In para. 3 of the additional pleas in the written statement the defendants said that the plaintiffs have filed this suit without any right or authority, and that this suit is not maintainable. The parties went to trial and the issues that I am really concerned with in this appeal are Nos. 3 and 4, which are as follows:
3. Did the disputed plots detailed in list B below the plaint come to plaintiffs on private partition between the parties, and are plaintiffs entitled to get possession over them with any damages and mesne profits, if so, what?
4. Is the disputed property held in common by parties and have plaintiff s no right to claim separate possession of any share?
2. The Munsif found in favour of the plaintiffs as to issue No. 3, and as regards the 4th issue also. The result was that he ordered the plaintiffs' suit for recovery of possession as prayed for to be decreed. I may mention that no issue was specifically framed or tried by the Trial Court with reference to the plea that the suit was not maintainable. The defendants went up in appeal and the learned Judge found that the plaintiffs' share in the holding was not 1/2 but 1/3rd. He further found that no legal partition of the family had taken place, and he dismissed the plaintiffs' suit. The plaintiffs have now come up in second appeal. The plaintiffs contend that the Court of first instance found in their favour, (1) that Puranmashi had two wives, and that the plaintiffs, were descended from one and the defendants from the other. (2) that for at least 16 years before suit plots Nos. 430, 436 and 478 had been in exclusive possession in equal shares by the plaintiffs or their ancestors and the defendants or their ancestors, and further that this exclusive possession was so recorded until instructions were issued by the Board of Revenue, when the Revenue Authorities declined to enter such division in the revenue papers (3), that the two parties although holding themselves jointly responsible for the entire rent of the holding to the zamindar, contributed their quota of the rent and separately paid that to the zamindar though a receipt was granted in the name of all, (4) that the plaintiffs or their ancestors hypothecated such portions of the holding which were recorded in their names, and shortly before the alleged dispossession they separately redeemed the property and obtained possession and, lastly that the defendants had dispossessed them.
3. The findings of fact arrived at by the lower appellate Court are admitted to be that the plaintiffs had failed to prove that Puranmashi had two wives, and further that no actual partition of the family property by metes and bounds had taken place. It was therefore, contended by the learned vakil for the appellants that these Bindings not traversing all the findings of the Court of first instance, could not be said to be such findings of fact as would throw their suit out of Court; that the partition considered by the Judge was a legal partition of property which was really capable of partition by metes and bounds, and certainly an occupancy holding was not such property about which there could be a suit for partition or a regular partition which could be recognized between the landlord and the tenants. He, therefore, submitted that I should frame further issues specifically on his possessory title and give him relief thereof.
4. The learned vakil for the respondents does not admit that contention. He supports the decree of the Court below on the plea that a suit for possession of a 1/2 share of a holding is not maintainable in the civil Court by reason of Section 32, Agra Tenancy Act. In support of his contention he has cited the case of Achhey Lal v. Janki Prasad (1906) 29 All 66 and the case of Ashiq Hussain v. Asghari Begam (1908) 30 All 90. In the first case two points were decided, viz:
(1) That a suit for a declaration even was not maintainable-that has been overruled by the Full Bench case of Najibulla v. Gulsher Khan (1909) 31 All 348-and the second point was that in view of Section 32, Agra Tenancy Act, a suit for possession of a portion of an occupancy holding was not maintainable, which has so far not been questioned, and it is impossible to distinguish the facts of that case from that of the present case.
5. With reference to the second case, although the facts are slightly different. I find that a Bench of this Court with reference to the contention put forward said: 'It may be that intention of the legislature was to forbid the institution of a suit for the division of a holding as against the landlord only, but the language used in the said sub-section is general and does not give effect to any such intention.' I am of opinion that this interpretation of Section 32 is binding on me.
6. The learned vakil for the appellants contends that as a bar to Section 32 was not pleaded distinctly in the Courts below, the respondents ought not to be permitted to plead that bar now. Secondly that the present suit was not a suit for partition of a holding, but was a suit for possession of certain land of which the appellants had been illegally dispossessed, and in support of his contention he refers to the case of Kedar v. Deo Narain AIR 1915 All 439. He further contends that it is only when a person claims division of a holding and a division of land both together which would be binding on a landlord, that the Tenancy Act prohibits a suit. I am unable to accept his contention. I feel bound by the rulings I have set out above. The case of Raghunath Kalwar v. Baladeen Kalwar (1911) 33 All 142 referred to by Mr. Ram Nama Prasad, has really no bearing.
7. The result is that I dismiss this appeal with costs which will include fees on the higher scale.