1. This appeal arises out of a suit for recovery of khas possession on declaration of the plaintiffs' title, and is on behalf of the defendants. Both the Courts below decreed the suit. The plaintiffs are admittedly one out of four groups of cosharers who jointly owned a tenure bearing a jama of Rs. 28-4-0 per year. In the settlement records the tenure appears to have been recorded in four different khatians in the names of the four different groups, and a particular Dag No. 2371, being the dag with which we are concerned in this appeal, was shown as appertaining to the share of a group other than the plaintiffs. This dag represented a raiyati jama of 8 annas held by two persons named Pratap Chandra Ray and Pramatha Nath Ray. The plaintiffs' case is that after the publication of the record of rights there was a partition suit amongst the plaintiffs and their cosharers, and in that suit a decree was made which apparently disturbed the previous arrangement regarding separate possession as evidenced by the settlement record. The lands which comprised dag No. 2871 were allotted under this partition decree to the plaintiffs. The plaintiffs maintain that as a result of this partition they were not bound to recognise the tenancy which might have previously existed in respect of the disputed dag, and they accordingly commenced the present action against the appellants who claimed to be transferees of the western moiety of this dag from one of the original tenants Pratap Chandra Ray under a kobala dated 16th December 1925. The transfer had been taken in the name of defendant 4 alone, but the plaintiffs also impleaded his father and his uncles defendants 1 to 3, for greater safety. For present purposes all these defendants may be supposed to represent the same interest.
2. The main contentions on behalf of the defendants were twofold. In the first place, they contended, relying on the settlement record, that the tenure to which the dag in suit appertained had been held by the plaintiffs and their cosharers in severalty before the partition, and that as such possession had been with the concurrence of all the parties concerned, the plaintiffs were bound to recognise the tenancy in respect of this dag. The plaintiffs were in fact to be treated as mere assignees of the interest of the cosharers under whom the tenancy was originally held, and hence not entitled to ignore the tenancy. Secondly, it was said that in any view, the defendants' vendor had acquired a right of occupancy in the land in suit by more than 12 years' occupation under the landlords, and that as at the date of their purchase occupancy holdings were transferable by statute, the defendants had also acquired occupancy rights by such purchase irrespective of whether they themselves had completed 12 years' possession as raiyats.
3. As regards the first point, it is clear that it depends on a question of fact as to whether or not before the partition suit the plaintiffs and their cosharers had possessed the tenure in severalty as alleged by the defendants. The learned Subordinate Judge thought that had such possession in severalty existed, there could have been no subsequent suit for partition He held in fact that such possession in severalty could not at all be established in this case. That is a finding which is conclusive in second appeal, and the case must, therefore, be taken to come within the scope of the Full Bench ruling in Niranjan Mukherjee v. Soudamini Dassi ('26) 13 A.I.R 1926 Cal. 714. It was held in that case that a person to whom a parcel of land has been allotted by a decree for partition of a civil Court, does not take it subject to a permanent lease granted by his former co-owners Without his conourrence when the land was the joint property of all the cosharers. The Full Bench Applied the principle of the well-known case in Byjnath v. Ramoodeen ('74) 1 I.A. 106, to the ease of a lease. There is nothing to show that in making the allotment to the plaintiffs under the partition decree in the present case, the existence of this tenancy within the lands allotted to them had been at all taken into account, tad there is no reason therefore why the plaintiffs Should be held bound by this settlement to which they were not parties and which had not been granted with their concurrence, I do not think that on the findings there is any scope here for an argument like the one which was suggested in a Patna case to which Mr. Bakshi referred, Raghunandan Sahay v. Dripa Nath Sahai ('29) 16 A.I.R. 1929 Pat. 208, that in the partition between the plaintiffs and their cosaharers the disputed lands had been allotted to the plaintiffs as raiyati lands and rated as such. The first ground urged by the appellants must consequently fail.
4. The second contention is also easily disposed of. It may be that the Roys with whom the dag was originally settled by the plaintiffs' cosharers acquired occupancy rights, and it may also be that the defendants by virtue of their purchase acquired similar rights, but if upon the partition the tenancy itself was transferred by operation of law to other lands, then such rights could attach only to the lands to which the tenancy was so transferred. After the partition, it could no longer be said that the raiyati jama which had been created by the plaintiffs' cosharers still subsisted in Dag No. 2371, but a new holding was substituted for it under, and within the lands allotted to, these cosharers, and it was in respect of this substituted holding that the defendants could really claim their occupancy rights. The principle of the Full Bench decision in Binad Lala Pakrashi v. Kalu Pakrashi ('93) 20 Cal. 708 (F.B.), which the defendants sought to invoke, has clearly no application to the facts of the present case. Here as already stated, as a result of the partition decree and by operation of the principle laid down in the other Full Bench case, Niranjan Mukherjee v. Soudamini Dassi ('26) 13 A.I.R 1926 Cal. 714, the tenancy in the original holding was extinguished, and a new holding created in its place, and there could be no question of the tenants still holding the former merely because they had been inducted into it. The second ground advanced on behalf of the appellants thus also fails. In my opinion therefore the plaintiffs are entitled to a decree as ordered by the learned Munsif. The result is that the appeal is dismissed with costs. The appellants will have time till the end of December 1941 to vacate the lands. Leave under Clause 15, Letters Patent, refused.