1. The plaintiff-respondent sued the tenant-defendant for recovery of arrears of rent in respect of a jama held by him under a patni which the plaintiff held under some of the proprietors of taluk Kalika Prosad Mozumdar.
2. The plaintiff alleged that the taluk was privately partitioned long ago into three shares, one of them being called Jagat Chandra Mozumdar, and that he obtained a patni in respect of one half of a village included within mudafat Jagat Chandra Mozumdar from one Mahomed Gazi, and 1/6th share from two other proprietors, and was in possession of the entire land, of which the rent was sued for as included in the 3/2rds share of the village taken by him in patni.
3. The defence was that there was no regular partition among the proprietors; but that there was a subsequent Collectorate Butwara, under which the lands, for which the rent was claimed, were allotted to Latif Meah and others, some of the heirs of Mahomed Gazi, who were entitled to the rent for the period subsequent to the Butwara.
4. The latter were accordingly made parties to the suit and Latif Meah set up a similar defence.
5. The Court of first instance gave a decree for full rents for the period before the Collectorate Butwara came into force and only for 3/2ths of the rent subsequent to it, i.e., only for the share originally held by Mahomed Gazi. On appeal by the plaintiff, the learned Subordinate Judge gave a decree for the entire rent to the plaintiff.
6. The defendant Latif Meah has appealed to this Court. The question raised in appeal is whether the plaintiff's patni is affected by the Collectorate Butwara and this turns upon whether Section 99 of the Estates Partition Act V of 1897 is applicable to the present case.
7. Section 99 of the Act applies only to cases where the estate is held in common tenancy by the proprietors. It has been found in the present case that there was a private partition among the proprietors of the estate and that the proprietors held their shares of the lands in severalty and were in separate possession of their respective shares. It was held in the case of Hridoy Nath Shaha v. Mohabutnessa Bibi 20 C. 285 that Section 128 of Bengal Act VIII of 1876 (which corresponds to Section 99 of Bengal Act V of 1897) does not apply to a case where there has been a private partition, the estate in such a case not being held in common tenancy within the meaning of that section, and that a patnidar is entitled to retain possession of the land allotted to his lessor in private partition notwithstanding the subsequent partition by the Collector.
8. We concur in the above ruling, and having regard to the findings arrived at in this case we hold that Section 99 of Act V of 1895 is not applicable.
9. It is contended that the proprietors, although they may have made a private partition among themselves, must be considered to be holding the estate in common tenancy, so far as the Government is concerned, so long as their share in the estate and the revenue payable by them were not separated in the Collectorate. But the words estate held in common tenancy' in Section 99 are used as opposed to an estate held in severalty among the proprietors themselves by private arrangement and have nothing to do with their relations to the Government. This is clear from a perusal of Sections 7, 76 and 79 of the Act.
10. It was also Contended that Latif Meah and others to whose share the lands have been allotted by the Collectorate Butwara are only some of the heirs of Mahomed Gazi. But if Section 99 is not applicable to the case the plaintiff's patni is not affected by the Collectorate Butwara and Latif Meah and others cannot complain, of any hardship as against the plaintiff on the ground that the lands have not been allotted to all the heirs of Mahomed Gazi by the Collectorate Butwara.
11. The appeal accordingly fails and is dismissed with costs.
12. This judgment will also govern the other Appeal No. 1270 of 1909 which is accordingly dismissed with costs.