R.C. Mitter, J.
1. This appeal is on behalf of pro forma defendants 4, 5, 8 and 10 in a suit for recovery of arrears of rent from 1333 up to the third Kist of 1336. The first Court granted the plaintiff a decree for rent only up to the Pous Kist of 1334, but the lower appellate Court has decreed the suit in full. The lands in suit appertain to parent estate No. 4407 of Faridpur Collectorate. 4as 16 1/2 gds share of the said estate was known as Hissya Durga Ram Roy. The said Hissya was owned by four groups of persons. The owners of the said Hissya created four permanent tenures, three Shikmi Taluks and a Kayemi Mirash.
2. In this suit we are concerned with one of the Shikmi Taluks, namely Taluk Kashi Chandra Bandopadhyaya. The said Shikmi Taluk was created either in favour of the 3 groups of the owners of Hissya Durga Ram Roy or have been subsequently acquired by the said owners. Proceedings under the Estates Partition Act (5 of 1897 B.C.) were started. The co-proprietors of Touzi No. 4407 who had not granted the Shikmi Taluks or the Kayemi Mirash got their allotments which did not include the lands of the Shikmi Taluks and the Kayemi Mirash. In the valuation of their Shahams, assets were taken, as it must be, on a Ryotwari basis. The allotment made to the proprietors of Hissya Durga Ram Roy was on this basis, namely that besides getting other lands each group of such proprietors was allotted one of the said permanent tenures either a Shikmi taluk or the Kayemi Mirash. The plaintiffs got Shaham No. 14 and the pro forma defendants Shaham No 13. To each of these Shahams was included one of the four permanent tenures, Shikmi Taluk Kashi Chandra Bandopadhyaya being included in Shaham No. 13. The partition was completed in Pous 1334.
3. Before the partition Shikmi Taluk Kashi Chandra Bandopadhyaya was held in equal shares by the three groups of persons who were also proprietors of Hissya Durga Ram Roy, each of the said three groups having a fourth share of Hissya Durga Ram Roy. Ramani Mohan Roy and others formed one of such groups. Plaintiffs purchased 6 annas 4 gandas 1 kara 21 jabs share out of the share of Ramani Mohan Roy and others both in the said Shikmi Taluk and the touzi and the pro forma defendants the remaining share both in the said Shikmi Taluk and the Touzi. The plaintiffs have sued one set of the raiyats whose lands fall within Shikmi Taluk Kasi Chandra Bandopadhya, claiming 6 annas 4 gandas 1 kara 21 jabs of one third of the rent due from them. They are no doubt entitled to this share of the rent as part owners of the Shikmi taluk up to the date when the partition became final, i.e., up to Pous kist of 1334. The question is whether they are entitled to claim any rent in their character of Shikmi talukdars after the partition.
4. The defence taken and the case as presented in the lower Courts was that taluk Kashi Chandra Bandopadhyaya has in law ceased to exist as a result of the said partition, being a taluk not created by all the proprietors of touzi No. 4407. That position cannot be maintained in law. If a tenure is created by some of the joint proprietors of an estate, the said tenure is not extinguished on a partition under the Estates Partition Act. If the lands compromised in the tenure fall within the Shaham of the grantor of the tenure, there is no disturbance of the tenure-holder. If they are allotted to others, the tenure-holder gets compensation lands from the Shaham of his grantor under Section 99, Estates Partition Act. In any case the tenure is neither destroyed nor split up.
5. In the case before me the said Taluk was created by some of the part proprietors of the touzi who did not get one joint allotment. They got four separate allotments and the lands of the tenure have fallen within the geographical limits of one of these four Shahams, namely Shaham No. 13 of the pro forma defendants. Mr. Karkoon contends that in such case the tenure holders of the Taluk Kashi Chandra Bandopadhyaya cannot say that all the lands which originally were comprised in the tenure are still included in the tenure after the partition. To make his position clear he takes a hypothetical case. A and B are part owners of an estate each having four annas share. They create a tenure which comprises 100 bighas of land comprised in block X; at the partition block X is allotted to A alone. Mr. Karkoon says that under Section 99, Estates Partition Act, the allotment of B cannot be free of the tenure. The tenure holder would get from the lands of B's allotment as within his tenure 50 bighas of land and as the tenure consisted of 100 bighas, only 50 bighas (the balance) in A's allotment would be burdened with the tenure and not the whole of 100 bighas. He says that otherwise the result would be unfair and inequitable, for A will have to be satisfied only with the rent payable by the tenure holder and would not be able to get any rent from the ryots holding any portion of the said 100 bighas while B will be able to realise such rents. I am afraid I cannot give effect to his contention. If by reason of this mode of partition there may be any likelihood of difference in the value of the two allotments, it is for A and B to have their allotments equalised in value by the partition authorities. That is to say in such a contingency A should have claimed more ryoti or khas lands in his allotments to make up for the deficiency of the profits intercepted by the tenure-holder.
6. His only remedy would be before the partition authorities when the allotments are prepared. To allow him to take up the position now would be to disturb the scheme of partition. The Shikmi Taluk being created by him subsists as against him. It is not destroyed, split up or mutilated in the circumstances of this case. The plaintiffs are part owners of the said Shikmi Taluk and have the same share therein as before. In the circumstances of this case also there is no inequity in the position of the plaintiffs and pro forma defendants regarded as proprietors of the estate, because the plaintiffs have within their allotment one of the Shikmi Taluks. The position is that the plaintiffs and the pro forma defendants would be entitled to realize the rent due respectively from the Shikmi Talukdars whose Taluks have been included in their respective Shahams, and inasmuch the Shikmi Taluks have neither been destroyed nor affected as a result of the partition under the Estates Partition Act; the plaintiffs as part owners of the said taluk are entitled to claim rent from the ryots according to the share claimed by them. The result is that the appeal is dismissed with costs.