1. This suit was originally filed in the Court of an Assistant Collector of the first class, the plaintiff, Sarnam Singh, seeking the ejectment of the defendant, Bisram Singh, (his own father's brother), from certain plots of land upon the allegation that the latter was holding the same as tenant-at-will of the plaintiff. The defencs sat up was in the alternative. In the first place, Bisram Singh pleaded that he was in possession of the plots in dispute as proprietor; in the second place, he pleaded that if his possession were held not to be proprietary, lie was at any rate an ex-proprietary tenant by operation of law and, therefore, not liable to ejectment upon the suit as brought. The Assistant Collector found against the defendant on both points and decreed the claim; but his decision has been reversed by the learned District Judge on appeal. I cannot say that I am satisfied with the judgment of the lower Appellate Court. There is first of all a positive finding that the defendant (the appellant in the Court below) is ex-proprietary tenant of the land in dispute. Later on, however, the District Judge proceeds to hold that there is no proof of the existence of the relationship of landlord and tenant between the parties. As it stands, this finding is inconsistent with the former, for the greater includes the less, and if the defendant is an ex-proprietary tenant of the plaintiff, it cannot be said that he is not a tenant at all. 1 think the learned District Judge meant to say that there was no evidence of any tenancy created by contract; and that if the defendant was not holding as an ex-proprietary tenant by statute, then he would not be a tenant at all and must be regarded as a trespasser in adverse possession, I do not think the decision of the Court below can be supported on this ground. If the District Judge had come to a clear finding that the defendant was in possession as a trespasser, he might at least have gone on to consider the effect of Section 196 of the Agra Tenancy Act, and whether the plaintiff's suit ought not under the circumstances to have been decreed under that section. Moreover, the District Judge seems to have overlooked the plea distinctly raised by the plaintiff that the defendant had been paying him rent. This plea may or may not be true in fact; but if the defendant, claiming to be an ex-proprietary tenant, offered rent to the plaintiff, it would, I conceive, be quite open to the latter to accept the rent tendered (thereby completing a contract of tenansy) without admitting the particular status claimed by the defendant. I do not remit an issue on this point, because in the course of arguments before me, the case for the defendant was expressly based by his learned Advocate upon the plea that he was in fact an ex-proprietary tenant. He has, indeed, nothing to gain by a finding that he is in possession as a trespasser.
2. I confine myself, therefore, to the one question really in issue,--is the defendant an ex-proprietary tenant of this land? It is clear that the parties have been on bad terms for year's past, and that the original dispute between them related to the succession to the share of Umrao Singh, a brother of the defendant and uncle of the plaintiff. An agreement was eventually come to by which the family property was to be divided between the parties in equal shares. Bisram Singh has, apparently, since come to the canclusion that he had in soma way let in over this agreement and that it was much against his interests. He has fought hard to escape being bound by it, but the Courts have decided against him. Under this agreement, a partition of the mahal, in which the plots in suit are situated, was carried out by the Revenue Courts. Ten plots of sir and khudkasht and with a total area of bighas 14/12 and an estimated rental of Rs. 22 were assigned to Bisram Singh, and eight plots with an area of bighas 14/12 and an estimated rental of Rs. 22 were assigned to Sarnam Singh. The original agreement between the parties obviously contemplated that actual possession should pass according to the above division; and the Revenue Court, which carried out the partition, does not appear to have contemplated the creation of any ex-proprietary rights in favour of one party as against the other. Certainly no proceedings were taken for the fixation of any rent under the provisions of Section 126 of the United Provinces Land Revenue Act. The plots in suit form part of the bighas 14/12 of sir and khudkasht lands assigned on partition to the plaintiff, Sarnam Singh. The learned District Judge finds that 'the three numbers in suit were, previous to the partition, jointly owned by the parties but were cultivated exclusively by the defendant as his khudkasht,' and by this finding of fact, the parties are now bound in second appeal. It by no means follows, however, that the defendant necessarily became on partition the ex-proprietary tenant of these plots. The decision in Kashi Prasad v. Kedur Nath Sahu 20 A. 219 was based upon quite a different set of facts. The case there was one of a mutual agreement by which the property of the parties concerned in a number of villages bad been divided amongst them, so that the whole of the sir lands of one of the parties in a certain village had passed into the proprietary possion of another. There was no question of any partition of a mahal under the Land Revenue Act, and the learned Judges proceeded under Section 7 of the former North-Western Provinces Rent Act (XII of 1881) expressly holding that the Land Revenue Act had no application to the facts then before them. Here we are dealing with a partition of mahal effected under the Land Revenue Act, and there can be no doubt that the provisions of Sections 122 to 127 inclusive, of what is now the United Provinces Land Revenue Act (Local Act III of 1901), do apply. I am disposed to agree with the opinion expressed by Mr. M.L. Agarwala in his note on Section 10 of the Agra Tenancy Act (Local Act II of 1901), corresponding with Section 7 of the former Tenancy Act (XII of 1881)' that, as the law now stands, a perfect partition of & mahal carried out under the provisions of Act III of 1901 would not in itself create an ex-proprietary tenancy by reason of the provisions of Section 10 of Act II of 1901, apart from the operation of Sections 122 to 127, inclusive, of the Land Revenue Act (KI of 1901). Those sections lay down the circumstances under which an ex-proprietary tenancy may be created by statute in consequence of proceedings held under Chapter VII of the Land Revenue Act, and they contain the entire law on the point, except in so far as reference is made, in Section 127, to certain provisions of the Agra Tenancy Act and of the Oudh Rent Act. The general object of the said Sections 122 to 127 inclusive, of Act III of 1901, is that upon a partition, lands held by one co-sharer as his sir or in severalty shall not be assigned on partition to the mahal of another co-sharer, except under particular circumstances and subject to certain conditions. In the case of a perfect partition, the Court has the wider discretion conferred upon it by Section 125 of the Act, and we must take it that no reasonable objection was shown by Bisram Singh when the particular plots now in dispute were assigned on' partition to the mahal of Sarnam Singh. The only question, therefore, for determination is, whether these plots now in suit, previously cultivated exclusively by the defendant as his own khudkasht' were included in the plaintiff's mahal 'otherwise than by exchange of sir within the meaning of Section 176 of the same Act.' It seems to me that I have not before me sufficient data for the proper determination of this point. Bisram Singh evidently received on partition a fair half of the sir and khudkasht lands; if he Was previously holding in severalty as his own sir less than one-half of the said land, then he must have received as an equivalent for these particular plots an equal area taken either from the sir previously held in severalty by Sarnam Singh, or from what was previously the joint sir of both parties held in severalty by neither. He could have objected to such an exchange being made, and submitted to the Court making the partition any reasonable cause available to him to show that these particular plots must remain in his own mahal; if he made no objection, but accepted in exchange an equivalent area taken from Sarnam Singh's sir or from the joint sir lands not held in severalty by either, then I should feel no hesitation in holding that Sarnam Singh got these plots 'by exchange of sir' within the meaning of Section 26, aforesaid. If, however, Bisram Singh was holding in severalty, prior to and up to the time of the partition, more than half the sir lands (giving that term the meaning provided by Section 127 of the Land Revenue Act), then Saram Singh was found to choose between leaving this excess area in his uncle's possession and asking for compensation out of the lands held by ordinary tenants, or taking a fair half of the sir subject to the ex-proprietary tenancy created by statute in favour of Bisram Singh in so much of the area concerned for which no equivalent in sir was given. I, therefore, remit the following issue:
3. Out of the total sir lands apportioned between the parties by the Revenue Court on partition, how much was previously held in severalty by either of them
4. If additional evidence is required, the District Judge may either take the same himself or remit the case to the Court of first instance for the recording of evidence. He should return his own finding within three months. Ten days will be allowed for objection.