A.K. Sinha, J.
1. This appeal is by the defendant appellant against an appellate judgment and decree of reversal.
2. The plaintiffs respondents filed a suit for partition of C. S. Plot No. 1356 measuring more or less 5 cottahs of land appertaining to Khatian No. 344 of Mouza Jainagore. This plot belonged to one Kedar Sadbukhan who sold in specific portions the entire plot by different registered documents of conveyance to the predecessors of plaintiffs Nos. 1 and 2 and to the respondent No. 3 and to the father of respondent No. 4 and the predecessors of the present appellant Labanyabala, the defendant No. 3 in the original suit. The case of the plaintiffs is that the defendants are co-sharers but as it was not possible to possess the property jointly partition of the property is necessary.
3. Defendant No. 3 the present appellant who alone contested the suit filed a written statement denying all material allegations. Her specific case is that she purchased 3 cottahs 9 chittaks of land with defined boundaries but with the description in the conveyance that the land measured 2 cottahs. She has alleged that she has been in possession of 3 cottahs 9 chittaks of land for more than 12 years and constructed her house there. It is further alleged that the plaintiffs 1 and 2 previously brought a suit against her for encroachment of their land and under an award made by the Arbitrator appointed in this suit she paid a sum of Rupees 150/- for encroachment of half cottahs of land to the plaintiffs and the matter was finally closed. The suit for partition is not maintainable and in any event the plaintiffs were estopped from bringing any further suit against her. The defendant No. 1 the present respondent No. 3 also filed a written statement supporting virtually the plaintiffs. Subsequently after filing their written statements on their prayer they were added as co-plaintiffs.
4. The trial Court dismissed the plaintiffs' suit, firstly, on the view that the lands were sold in specific portions to the parties or their predecessors with boundaries and there being no jointness of interest of the plaintiffs and the defendants in the entire area, thus sold, they were not co-sharers and the suit for partition was not maintainable and secondly that a decree having been passed on the basis of an award in the previous suit for encroachment brought by the plaintiffs Nos. I and 2 against the defendant No. 3 it was conclusively established that they were not co-sharers of the disputed property. On appeal by the plaintiffs Nos. 1 and 2 the appellate Court below took a different view of the matter and decreed the plaintiffs' suit for partition on the view that the disputed property was a joint property belonging to the parties in the suit. The correctness of this is now challenged before me in the present appeal.
5. It is not disputed in this case that specific portions with defined areas and boundaries were sold by Kedar to different parties but in each of the Kobalas the share of Kedar representing each of these plots and that of the proportionate rent payable byeach of the purchasers out of the total jama (rent) of Rs. 2-4/- per annum was also mentioned relating to 16 annas share of Kedar in the entire land. There is also no dispute that a suit was brought by the plaintiffs alleging encroachment of their land by the present appellant and in that suit Arbitrators were appointed who gave an award on a finding that there was encroachment by the present appellant to the extent of half cottahs of land and she was directed to pay Rs. 150/-representing the value of such land as already there has been structure erected by her and a decree was passed accordingly. Now the question is whether in spite of these facts the parties could be held to be co-sharers of the properties so that they can claim partition according to their respective shares in the entire property. The lower appellate court took the view that the decree passed on the award for encroachment of the land could not operate as res judicata in the partition suit. The other reason which weighed with the lower appellate Court substantially was that since proportionate share of the vendor out of his 16 annas interest was mentioned in each of the transfer all the purchasers purchased undivided share and thus became and continued to hold the entire property as joint property and the record of rights showing their respective undivided shares was correct even though specific portion of the property was sold separately to each of them. I think the whole approach to the question is erroneous. This is not a case of ancestral property belonging to Hindu Joint Family nor an acquisition of property by joint fund nor a joint acquisition by several persons of a property either of equal or unequal shares. This is a case where a common owner has transferred specific portions out of the entire plot with defined areas and boundaries to different purchasers on different dates although mentioning his proportionate share with reference to the entire jama. It is well settled that to establish jointness, that is, in such cases a tenancy in common, all co-owners must have equal rights of possession co-extensive with the entire property although their shares may be either defined or undefined. 'To constitute a tenancy in common', as stated by Freeman in his 'Co-tenancy and Partition' 2nd Edition at page 150 'there must be an equal right to the possession of every part and parcel of the subject-matter of the tenancy. Several persons may together own an entire thing without being co-tenants. This is always the case where one of them has the exclusive right of possession in one part of the thing, and the others have such exclusive right in the other parts.' In the facts of the present case, it appears that although the property belonged to a common owner he sold this property in divided small plots, so to say to different persons separately and exclusively mentioning the area as also defining the boundaries to each of the purchasers. It, therefore, seems clear that by such transfer each of the purchasers had no right to possess those specific plots sold to others jointly with them. The mere fact that proportionate share of the common owner in respect of these specific portions sold to each of the cosharers in the document was mentioned could not by itself create rights or interest of co-ownership in respect of the entire property. The share of the common owner representing the specific portions sold to each of the purchasers on the facts of this case must be deemed to have been mentioned for the purpose of payment of the proportionate rent of the entire jama to the landlord. There is nothing in any of the impugned documents of sale to show that the sale of specific portions with defined boundaries to each of the co-sharers was made by way of amicable arrangement for convenience of possession of different purchasers. In fact no such case has been made out by the plaintiffs at any point of time. Therefore, applying the test of equal rights of enjoyment and possession of the entire property essential in the case of co-ownership, clearly, plaintiffs' suit for partition as co-owner fails.
6. The other question, as raised by Mr. Bhattachrayya on behalf of the respondent, is whether if the jama remains undivided even after the transfer of specific portions of the property to different purchasers such purchasers are still entitled to a partition of the property as co-owners.
7. Mr. Bhattacharyya on behalf of the respondent has argued that since there has been no severance of the jama of disputed holding the purchasers from a common owner even in different lots are entitled to effect a partition between all the purchasers as co-sharers. In support of this argument he has relied, first, on a Full Bench decision of this Court reported in (1880) ILR 5 Cal 902, Ishwar Chunder Dutt v. Ramkrishna Dass. In this case what happened was that the defendant was a tenant of certain tenure which originally belonged to Ramgopal Nandy and Huro Krishto Nandy in equal shares. Ramgopal's 8 annas share then came by inheritance to one Komalakant who sold 4 annas share out of the 8 annas to the plaintiffs' uncle from whom the plaintiffs acquired it as their uncle's share. The defendant paid his rent to Komalakant for his 4 annas share but never paid any rent to the plaintiffs in respect of their 4 annas and he denied the plaintiffs right to sue for such rent insisting that he paid rent of 4 annas of the entire tenure to Komalakant and for the remaining 12 annas to the heirs who claimed under Huro Krishto. In this state of facts it was held that a sale of a portion of a tenure let out to tenants in its entirety did not of itself necessarily effect a severance of the tenure or an apportionment of the rent but that if the purchasers all desired to have such a severance or apportionment he was entitled to enforce it by taking proper steps for that purpose. It was further held in case of failure to effect anamicable apportionment of rent by arrangement between all the parties concerned the purchaser might bring suit against a tenant for the purpose of having the rent apportioned making all the co-sharers parties to the suit and further no distinction could be made in cases where a tenure was severed by different portions of its area being sold to different persons from those where it was sold to different persons in undivided shares. The suit, however, on merits was dismissed as the plaintiffs did not take any proper steps for making amicable arrangement to obtain apportionment of the rent. I think, the principle indicated in this decision cannot have any application to the facts of the present case as clearly the instant suit is not a suit for severance of the tenure and apportionment of rent between all the interested parties including the landlords but for partition simpliciter between the purchasers of different plots of the entire property by metes and bounds.
8. The next case relied on is reported in 82 Ind Cas 31 = (AIR 1925 Cal 272), Ekabbar Ali Shah v. Kon Ali. In this case, it appears that a suit for khas possession of a piece of land upon declaration of plaintiff's 'jote right' thereto was filed on the allegation that the disputed land together with other lands belonged to one Ishan Chandra Lahiri in his zamindary right who was in exclusive possession and that they took settlement of 'jote right' therein from him and thereafter were wrongfully dispossessed by the defendants. The contesting defendants however, alleged that Ishan had no zamindary right in the disputed land nor was in possession thereof and that the land formed part of a 'Chawk' belonging to him and his predecessors and they had been in possession for three generations. Upon these facts it was held that unless mutual arrangement was proved for separate possession the only remedy lay in a suit for partition. This case again has no application to the facts of the present case, and in any event it does not seem to be an authority for the proposition that even where a common owner transferred his property to different purchasers in separate plots they are still entitled to bring a suit for partition again of the entire property by metes and bounds.
9. The next case cited is reported in AIR 1923 All 363, Kuldip Chaube v. Jagnandan. This decision, as appears, was passed in a suit by the plaintiffs for exclusive possession of certain plots which, they alleged, was their 'Khudkasht' land from which the defendant wrongfully ejected them. The plea taken by the defendant was that the land belonged to a joint 'khata' and the plaintiffs wrongfully brought the suit for exclusive possession. Upon these rival contentions of the parties the High Court held that the plaintiffs were entitled to exclusive possession to the disputed property and it was for the defendants to apply for partitionat the first instance but they could not by such act of dispossession compel the defendants to sue for partition in the Revenue Court. This decision, in my view, is of no assistance to the respondents in the present case.
10. The last case relied on is reported in 90 Ind Cas 673 = (AIR 1926 Cal 333), Mohini Mohan Saha Chowdhury v. Miajan. From the facts of this case it appears that some co-sharers brought a suit making other co-sharers as pro forma defendants for the entire rent and prayed that their share of rent might be decreed in their favour. Upon these facts on the authority of the proposition laid down by Full Bench of this Court in Iswar Chunder Dutta's case (1880) ILR 5 Cal 902 (supra) it was held that a purchaser by virtue of his purchase, even if of a divided share, remained nonetheless a co-sharer and was entitled to maintain a suit for apportionment of rent. This case, therefore, has clearly no application to the facts of the present case. It is true that all the parties have acquired certain fractions out of the entire property in separate plots and their proportionate shares of rent payable to each of them has also been fixed in their respective documents but these facts could not constitute the severance of the jama or the totality of rent payable to the landlord in respect of the disputed holding or in other words each of the purchasers of specific portions of the property remains liable to pay the total rent to the landlord. It may also be true that any of such purchasers on his turn may bring a suit for effecting severance of this jama by making the landlord and other purchasers as parties defendants in such a suit and for apportionment of his rent payable to the landlord but this does not mean that they are able to effect again a physical partition of the entire property which has already stood divided amongst them on the basis of their respective documents of transfer. Such a suit for partition, in my view, is not maintainable.
11. The same question, if considered, from another aspect would yield the same result. If supposing, such a suit as the present one for physical partition is maintainable, then also on the proposition laid down in the above Full Bench decision of this Court, the parties nonetheless continue to be the co-owners as the jama of the holding remains the same. In other words, in the instant suit in spite of physical partition there cannot be any severance of jama and consequently, the co-ownership between the parties is not dissolved. It is well established that the partition at the instance of the holder of the subordinate interests as between themselves will not be binding on the holders of the superior interests. Surely, it does not disentitle the holders of the subordinate interests to effect a partition amongst themselves if the claim of such parties is based on the joint possession of the parties. See35 Cal LJ 234, Motilal Dey Sarkar. v. Kamar kshya Charan Dev Sarkar. In this case as I have already held that as there is no joint possession of the parties in respect of the entire property, no such suit is maintainable even though they remain co-owners in the sense that there, is no severance of the jama in respect of the disputed property. The trial Court, it appears, has held in support of its conclusion that the entries in the record of rights in respect of the undivided shares is correct. The entries in the record of rights relating to the interests of the parties in this suit are made with reference to the entire jama or the total rents payable to the landlord which admittedly has not been split up. In any case presumption of correctness of entries in the record of rights on the facts of this case stands rebutted on the evidence adduced which clearly proves absence of joint possession in the entire property of the parties. The trial Court also held that the previous suit for recovery of possession of the adjacent lands of the plaintiffs Nos. 1 and 2 'on alleged encroachment by the defendant No. I would not operate as res judicata if the right exists between the parties to claim partition as co-sharers but nevertheless this is a circumstance which would no doubt be relevant piece of evidence to establish that all the purchasers treated their specific portion of the property purchased from the common owner as their separate and exclusive property and not as joint property of the parties. Considering all these, it must be held that the decision of the appellate Court below is not correct. I, therefore, come to the same conclusion reached by the trial Court though not altogether on similar reasons.
12. Accordingly, this appeal is allowed and I set aside the judgment and decree of the appellate Court and restore the decree of the trial Court.
13. Considering the facts and circumstances of this case, however, I do not make any order as to costs.