1. The plaintiffs in the suit out of which this second appeal arises, somewhat imarudently perhaps, took a lease purporting to be a mourasil mokarrari lease of an undivided 8-anna share of certain land, comprising a bhadrashan or homestead and a tank with its banks, the rent reserved being Rs. 2 per annum. The area of the whole plot is 10 cottas 12 chattaks.
2. The lease is dated the 2nd April 1913. In 1917 the respondents, defendants in the suit, brought a suit for partition to which their co-sharers, the plaintiffs' lessors, were made parties. The plaintiffs themselves were not impleaded. In the result the tank was allotted to the respondents; but the portion of the land referred to as the bhadrashan was allotted to the plaintiffs' lessors and it is now in exclusive possession of the plaintiffs.
3. The Trial Court found that the plaintiffs were never entitled under their lease to an 8-anna share of the whole plot but only to a 4 anna share, and that finding has been confirmed by the lower Appellate Court. No question now arises on that point.
4. The case for the plaintiffs is that, after the decree in the partition suit, the defendants dispossessed them of the share or the rights which they had formerly enjoyed in the tank. The Court of first instance found that there had been such dispossession and made a decree on the footing that the plaintiffs were entitled as against the respondents to an undivided one fourth share of the tank.
5. On the appeal preferred by the respondents the learned Subordinate Judge held that the plaintiffs took their lease subject to the right of the co-sharers of their lessors to claim a partition and could not successfully claim any rights in any portion of the land which had not been allotted to their lessors. In that view, the Subordinate Judge in substance dimissed the suit, though by consent so much of the decree of the Trial Court as allowed the plaintiffs to use the water of the tank and to drain water from their house into it, was maintained.
6. Before us, it is contended for the plaintiffs that the decree in the partition suit to which they were no parties, is not binding on them and that they are entitled to the same rights in the tank as they had before that decree was made. Reference was made to the case of Shaik Khan Ali v. Festonji 1 C.W.N. 62. It is further argued that there is no analogy between the case of a lessee and those cases, such as Byjnath Lall v. Ramoodeen Chowdhury 1 I.A. 106 at p. 120 : 21 W.R. 233 : 3 Sar. P.C. J. 333 : 2 Suth. P.C.J. 942, in which a mortgagee of an undivided share of lands held in common has been allowed to enforce his security only against the portion of the joint property allotted on partition to his mortgagor, and that it is also important to distinguish such cases as that of Joy Sankari Gupta v. Bharat Chandra 26 C. 434 : 3 C.W.N 209 : 13 Ind. Dec. (N.S.) 880 where partition was effected, not as here by a suit for partition in the Civil Court, but by the Revenue Authorities under the Bengal Estates Partition Act.
7. The learned Vakil for the respondents has conceded that the decree in the partition suit and the partition are not binding on the plaintiffs, so that at this stage there is really no dispute that the plaintiffs are still entitled as against the respondents to the rights of lessees in an undivided 4-anna share of the whole plot including the tank.
8. The learned Vakil has not contested the soundness of the decision in Shaik Khan Alis case 1 C.W.N. 62 on the partiaular facts. He has, however, argued that inasmuch as the plaintiffs are in exclusive occupation of the bhadrashan, and as the bhadrashan comprises nearly 4 cottas or more than a 4 anna share of the whole plot, the plaintiffs are not free to claim any share in the tank, unless at any rate they are prepared to surrender a portion of the bhadrashan.
9. The position so taken cannot, in my opinion, be supported. For if we turn to Shaik Khan Alps case 1 C.W.N. 62 where also the partition was by suit, we find that Sir Comer Petheram, C.J., with the aonaurrenae of Rampini, J., said this:
I quite fail to see how any subsequent dealing with the property by partition, subsequent to the creation of the estate by a lease and by a person who had a perfect right to create it, could have affected the right of the lessee .
10. If the principle conveyed or implicit in those words be applied to the facts of the present case, the matter stands thus. The respondents have parted with all their rights in the bhadrashan to the plaintiffs' lessors, so that it is no concern of theirs who is in possession of the bhadarshan. The plaintiffs had before the partition completed their title to and were in rightful possession of an estate by lease in the tank, to the extent at any rate of a 4 anna undivided share, and their right to such possession was not affected by the partition to which they were no parties. Whatever, therefore, their right may be in the bhadrashan, they are still entitled to the one-fourth share of the tank. Nothing has occurred which justified the respondents in depriving the plaintiffs of all possession and enjoyment of the tank. In taking possession of the whole tank, in virtue merely of the decree in the partition suit, the respondents were in the wrong.
11. The difference between the lessee and the mortgagee is this, that in the case of a lease followed by possession of the property demised, the title of the lessee is complete, while in the case of a mortgage the land is merely hypotheaated and no title thereto is perfected until the security is enforced see Byjnath Lall v. Ramoodeen Chowdhury 1 I.A. 106 at p. 120 : 21 W.R. 333 : 3 Sar. P.C.J. 333 : 2 Suth P.C.J. 942].
12. The respondents are no doubt entitled, if they choose to make the claim, to an aliquot share of the rent payable by the plaintiffs under the lease. They may or may not have some remedy against the plaintiffs' lessors and there may be a question between the latter and the plaintiffs whether the plantiffs are entitled to the whole of the land comprised in the bhadrashan. But in the present case it is not necessary to deal with such questions and they must be left open.
13. A subordinate point was taken that the learned Subordinate Judge has not expressely found that the plaintiffs took possession under their lease and were dispossessed by the respondents. But the Munsif so found, and it appears that the case was argued by c both sides on that footing in the lower Appellate Court. If necessary, I am prepared to find that the plaintiffs were dispossessed as they allege.
14. It was also suggested that the dispossession did not amount to an ouster. But as things stand, the plaintiffs and the respondents can only be regarded as co-sharers in the tank and it is obvious that the plaintiffs have been ousted from the tank.
15. The result is that the appeal must be allowed, the decree of the learned Subordinate Judge must be set aside and the decree of the Munsif restored. The plaintiffs are entitled to their costs in this Court and in the lower Appellate Court.
16. I agree.