1. The plaintiff-appellant purchased touzi No. 97 known as Kharija Taluk Pabgati in the year 1923, at a sale for arrears of revenue. He took possession through the Collector but when he sought to possess the lands of the tauzi he was resisted by some of the defendants. Thereupon he sued for a declaration of his title to the property and for khas possession by evicting the defendants therefrom. A vast number of defendants were impleaded, but most of them were subsequently given up and their names struck out of the plaint. The suit proceeded against defendants 1 to 19, 22 to 26,114, 363, 518 to 518g, 519 to 522, 525 and 526 only. Of these, defendant 363 filed one petition of compromise, defendants 518 to 518g and 519 to 522 filed another petition of compromise, and defendants 525 and 526 have filed still another. Defendants 5 to 7 filed a written statement disclaiming title or possession in the land; and defendants 17 to 19 filed another written statement to the same effect. Defendants 1, 4 and 10 each filed a written statement denying plaintiffs' title, and claiming to be owners in possession of shares in a gati tenure which had been in existence from before the permanent settlement and which was therefore not liable to be annulled.
2. At the time of hearing only defendant 10 appeared and contested. The learned subordinate Judge came to the conclusion that the gati tenure set up by defendants 1, 4 and 10 had been in existence from before the permanent settlement, and that defendant 10 had a 2 annas share in that gati. He found further that the plaintiff had acquired the remaining 14 annas share in the gati tenure. He therefore decreed the suit in part declaring plaintiff's title to tauzi No. 97 and allowing plaintiff joint possession to the extent of 14 annas share with defendant 10 in the gati tenure and directed the eviction of the absent defendants and of the disclaiming defendants (defendants 5 to 7 and 17 to 19) from the land. As against the defendants who filed petitions of compromise, the suit was decreed in terms of those petitions. Against this judgment and decree, plaintiff filed one appeal, which is T. A. No. 47 of 1936, and defendants 1, 2 and 4 and another person Renukabala who was subsequently added filed another appeal which is T. A. No. 52 of 1936 before the District Judge of Khulna. These two appeals were heard together. The learned District Judge came to the conclusion that the gati tenure was in' existence from before the permanent settlement and wastherefore not liable to be annulled. He accordingly dismissed the plaintiff's appeal, allowed T. A, No. 52 of 1936 and dismissed plaintiff's suit in its entirety. Against that judgment and decree, plaintiff has preferred this second appeal.
3. Dr. Pal appearing on behalf of the appellant argued that even on the findings of the Courts below, his client was entitled to a declaration of his title as proprietor of tauzi No. 9Y. This title had been denied and an issue regarding it had been framed and decided in plaintiff's favour. Dr. Pal further argued that the decree as against those defendants who had compromised could not be set aside, and that there was no justification for setting aside the decree against the non-contesting and non-appealing defendants. His further argument was that defendants' interest came into existence after the permanent settlement and was therefore not protected; and even if it be held that the gati tenure had been in existence from before the permanent settlement, defendants-appellants in the Court of appeal below not having contested in the original Court, should have been required to prove a subsisting title in themselves before the suit was dismissed as against them.
4. Plaintiff's title as purchaser of tauzi No. 97 at a revenue sale was questioned but is now not disputed. In the circumstances plaintiff was clearly entitled to a declaration that he had such title. So far as the defendants, who compromised the suit, are concerned, it is clear from the petitions of compromise that they gave up all their interests in the property in favour of the plaintiff. Plaintiff was certainly entitled to a decree against them, but the nature of that decree would necessarily depend on the nature of the interest acquired by the plaintiff by virtue of those compromises. So far as those defendants who have never contested are concerned the lower appellate Court had jurisdiction to set aside the decree; but on the view taken by us regarding the interests of the plaintiff and contesting defendants, we think that that jurisdiction was improperly exercised, and that the decree against them should not have been set aside in toto.
5. The most important question however in 'this appeal is whether defendants 1, 2, 4 and 10 and the added appellant 8 had a protected interest. Both the Courts below have found as a fact that the gati tenure set up in the written statements of defendants 1, i and 10 came into existence before the permanent settlement. This finding cannot now be challenged. If that gati tenure still exists then the owners of it are not liable to be evicted. Appellant bases his claim against defendant 10 and against defendants 1 and who claim a share on that tenure on the ground that these defendants admit that sometime after the permanent settlement, the tenure was sub-divided with the consent of the landlord and 7 separate jamas created. Appellants' contention is that these separate jamas are not protected interests and that the defendants are liable to be ejected. In each of the three written statements i. e., those of defendants 1, 4 and 10, there is substantially the same statement-of facts viz., that the gati known by the-name of Kali Prosad Dutta Mustafi, with an annual rent fixed at Rs. 226-11-3 has been in existence since before the permanent settlement, that with the consent of the landlord there was a sub-division of the tenure into 6 jamas each consisting of 2 annas of the original tenure, and one jama consisting of annas share of the original, tenure each such share being held at a proportionate rent and the total rent being the. same as that of the original tenant, that since the sub-division the owners of the sub-divided jamaa have possessed their portions separately and that the entry in the settlement record to the contrary is incorrect. In the written statement of defendant the reasons for this sub-division were given.
6. The question for consideration therefore is whether on the sub-division of a tenure with the consent of the landlord, the old tenure can be said to remain in existence on new tenures have been created. Section 88, Ben. Ten. Act, provides that a division of a tenure or a distribution of the rent payable in respect thereof shall not be valid unless such division or distribution has been expressly consented to both by all the landlords and by all the tenants. If there has not been such consent, any division or distribution will be invalid, and will at most amount to an amicable arrangement for the better enjoyment of the property. If there has been such consent, then it has been held in Krishna Kamini Dassi v. Nil Madhab Saha ('23) 10 AIR 1923 Cal 66 that the sub-division of the tenure does not operate as a breach of the continuity of the tenure, if each fragment is held at a proportionate rent and the aggregate rent equals the original rent, and the tenure-holder is entitled to the benefit of the presumption formulated in Section 50 (a), Ben. Ten. Act. In this judgment the decisions in a large number of earlier cases were referred to, and the Court dissented from the contrary view expressed in Uday Chandra v. Nripendra Narayan Bhup ('09) 36 cal 287. In all these cases the question for consideration was whether the rent or rate of rent was liable to be increased; and it was in this connexion only that the question whether sub-division created a new tenure or not was considered.
7. In our opinion the question before us is essentially different. We are liable to take the view that when a valid sub-division of a tenure has been made, there has been no alteration in the terms of the contract between the parties. It seems to us clear that a landlord might improvidently, recklessly give his consent to repeated subdivisions of the tenure and thus bring about a condition of affairs where separate portions of the tenure would be separately liable for insignificant portions of the original rent. If this happened it might become impracticable to realize the rent of these separate portions. In such a case the realization of the Government revenue would be seriously imperiled. We are unable to hold that in providing by law that the original tenure should be a protected interest the Legislature intended that the sub-divided tenures should enjoy the same privilege. We are therefore of opinion that though the valid sub-division of a tenure does not operate as a breach of the continuity of the tenure for the purposes of Section 50, Ben. Ten. Act, it would so operate for the purposes of Section 37, Land Revenue Sales Act, if it were valid and binding against a purchaser of the superior interest in a sale for arrears of Government revenue. Any other view would in our opinion enable a defaulting proprietor to defeat the objects of section 37.
8. The question for us to consider is whether the sub-division set up by the defendants is valid and binding on the plaintiff. In our opinion the two apparently conflicting statements in the written statements to the effect firstly that the original gati tenure is still in existence and secondly that there has been a valid sub-division are not in reality contradictory. The meaning of the two statements is simply that the sub-division which was valid and binding on the landlord who consented thereto did not operate as a breach of the continuity of the tenure, and that-that sub-division is valid and binding on the purchaser and still does not operate as a breach of the continuity of the tenure. The view of the law may be wrong, but the two statements are not contradictory. The defaulting proprietor could not, in our opinion, consent to a valid sub-division of the tenure so as to bind a purchaser at a revenue sale. It must be taken therefore that the consent of the defaulting proprietor cannot be regarded as a consent binding on the subsequent purchaser at the revenue sale. If this view is correct, the sub-division of the tenure must now be regarded as having been made without the consent of the landlord and as being invalid as against the plaintiff. In other words, the original gati tenure is still in existence and the subdivision is no longer valid, and amounts merely to an amicable arrangement among the tenure holders for the more convenient enjoyment of the property. That tenure is a protected interest and cannot be annulled. That tenure admittedly comprised the entire lands of plaintiff's tauzi. Plaintiff cannot therefore obtain khas possession of the lands merely by virtue of his title as proprietor of the touzi. By compromise plaintiff apparently acquired some share in the gati tenure. This share was acquired after the date of suit. There is naturally nothing in the plaint to indicate the extent of the share in the gati tenure claimed by plaintiff and there is not sufficient material on the record to determine that share.
9. Similarly defendants 1 and 4 did not indicate in their written statements the extent of their share of the tenure still possessed by them. It may be observed that those defendants who compromised with plaintiff claimed to have purchased the interests of defendants 1 and 4. Defendants were not called upon to meet this case; and there is no material on record to enable the Court to determine what is the share of the gati tenure which now belongs to the plaintiff and what is the share belonging to the contesting defendants other than defendant 10. Defendant 10's title to 2 annas share of the gati was found by both the Courts below and is not now challenged. It follows from the above that it will not be possible to make a complete determination of the rights of the parties to this suit, without amendment of the pleadings and further enquiry after the taking of additional evidence. It seems to us undesirable to order a remand to enable such an enquiry to be made. It would be better to decree this suit partially and leave the parties to institute a further suit for the complete determination of their rights.
10. In our opinion, this second appeal should be allowed. Plaintiff's title as owner of touzi No. 97 should be declared, but he cannot get khas possession as owner of the touzi. It should further be held that the gati tenure Kali Prasad Dutta Mustafi is a protected interest and not liable to be annulled. As the total share in this gati tenure claimed by the contesting defendants is less than 16 annas and as the interest of the compromising defendants has been given up to the plaintiff it follows that plaintiff has acquired some share of the gati tenure and is entitled to joint possession with defendant 10 and with the other cosharera in the tenure. Defendant 10's interest in the tenure is 2 annas share. The extent of the plaintiff's interest and of the interest (if any) of defendants 1, 2 and 1 and the added appellant 8 is not decided and is left for decision in another suit which any of these parties is entitled to bring. As against the other defendants to the suit, the decree of the original Court should be restored. Defendant 10 is entitled to his costs throughout from the plaintiff. As the other defendants did not contest in the original Court, they should pay plaintiff's costs throughout. The appeal is allowed in the manner indicated above.
11. I agree.