1. This is an appeal by the defendant in a suit for khas possession brought by the plaintiff on the footing that the land in dispute fell into the plaintiff's share on partition against the different defendants. The defendants admitted the partition but they say as they were no parties to it and as the partition was between the co-sharer proprietors, they the defendants, who hold sikmi taluks under another co-sharer cannot be ejected by the plaintiff unless and until he establishes affirmatively that the lands in dispute do not appertain to their sikmi taluks, which really involves the assertion that the plaintiff cannot obtain any portion of the land which was allotted to them by partition if any body chooses to say that it belongs to the sikmi taluks. But the contention in this appeal is that the onus has been wrongly thrown upon the defendants of showing that these lands really appertain to their sikmi taluks.
2. Now we do not think that this question of onus arises at all The sikmi taluks were created by the co-sharer who was the zemindar of Estate No. 96. The lands of Estate No. 96 were held jointly with the lands of Estate No.-3653, which has bean held by the predecessors of the plaintiff and now is held in severalty by the plaintiff under this partition. The question of what fell into the share of Estate No. 3653 on partition is a question of parcel or no parcel, in other words, a question of fact, and the plaintiff having established that the land in dispute fell into his share on partition, it is clearly for the defendant to establish that he has some special right in limitation of the plaintiff's right by partition. The plaintiff in fact shows that the landlord of the defendants that is, the owner of Estate No 93 Has given up his title to the land, and, therefore, the defendant cannot resist the plaintiff's paramount title without proof of his physical holding under the plaintiff. But we may even go further than this and say that the defendant could not even defend this suit on the principles laid down by the Privy Council in Byjnath Lall v. Ramoodeen Chowdry 21 W.R. 233; 1 I.A. 106. This is a case of mortgage, but the principle laid down was that if an undivided owner creates an interest by which the other co-sharers are not bound, the holder of that interest cannot follow the interest of the Other co-sharers. It was sought to distinguish this case by a principle of adverse possession, because the mortgagees had not completed their title by foreclosure, whereas in this case the sikmi holders had been holding for 120 years. But this case is obviously stronger than that of a mortgage, for; when the mortgagees foreclose they become cosharers themselves which the sikmi talukdar can never be, and there can be no adverse possession as between co-sharers. But the case of Joy Sankari Gupta v. Bharat Chandra Bardhan 26 C. 434; 3 C.W.N. 209 is exactly in point. That was a case similar to the present case, and the Chief Justice and Mr. Justice Banerjee there held that on partition by the Collector under the Estates Partition Act, when any land of an undivided joint estate which was incumbered by any co-sharer is allotted to any other co-sharer, the latter takes it free from the incumbrance so created, so that it was not open to the defendant to make this defence in this suit.
3. The plaintiff must succeed by virtue of his undivided title which he has established, and the appeal must, therefore, be dismissed with costs.
4. This judgment will govern Second Appeal No. 2512 of 1910.