1. This appeal has arisen out of a suit for recovery of arrears of rent from 1337 B. S. to 1340 B. S. at Rs. 10-4.3 par annum with cesses and damages. The tenants defendants pleaded that they held the jama under the Howladar Mominuddin and paid rent to him. Mominuddin was therefore made a party as defendant 14. He claims that the defendants hold the land in Nim Osat Howla under him. It appears that this land is within a taluk which was partitioned under the Estates Partition Act. It was originally held under a howla which falls exclusively under a 5 1/2 gandas 2 kr. share of the taluk. The disputed jama was allotted to the plaintiff in the partition in his 6 annas share. The Butwara papers show that the howla was not held by the plaintiff before the partition. The suit was contested by defendant 14. He produced some dakhilas showing that he realized rent from the tenants. But the trial Court held that these dakhilas were collusive and that this howla had nothing to do with the plaintiff's share and the learned Munsiff accordingly decreed the suit for the rent as claimed. The lower Appellate Court dismissed the suit on the ground that Section 99, Estates Partition Act has no application except in cases where a share or a portion of share of a taluk was leased. Therefore the plaintiff is not entitled to ignore the taluk unless the estate is held in common tenancy in which case although Section 99 would have no application, still on equitable consideration the same principle would apply.
2. In this appeal it is contended in the first place that a wrong procedure was adopted by the Court below since the rent due was admitted, but the tenants pleaded that as the rent is due to a different landlord the proper procedure should have been for the tenants defendants to deposit the rent due and to direct the person to whom it is alleged to be due, to establish his title and on his failure to do so the rent should have been paid to the plaintiff. It appears, however, that the tenants plead that they have already paid the rent so that there is no question of depositing the rent. Thus the procedure adopted does not appear to be wrong in the particular circumstances of this case.
3. The other point raised on behalf of the appellant is that the onus has wrongly been placed on the plaintiff by the lower Appellate Court. Defendants maintained that they had paid rent to Mominuddin. The land in suit being included in the plaintiff's share on partition, and defendant 14 claiming an intermediate tenancy the plaintiff is entitled to the rent of the land included within his share either from defendant 14 who claims that the land is within his tenure or from the occupants of the land. Defendant 14 claims to hold under a different landlord but it does not appear that he paid any rent for the land and that any other cosharer is claiming rent from him on account of this tenure. The lower Appellate Court held that equitable considerations were in favour of the plaintiff as the Munsiff found that the estate was held in common tenancy and in that case any person accepting an interest in the land from the co-owners in possession must take it subject to the rights of the others to enforce a partition. The learned Sub-ordinate Judge, however, held that in this case there is no evidence that the estate was held in common tenancy. There is no evidence except the fact that the estate was partitioned by the Collector. But he held that there is no presumption in law that an estate was held in common tenancy from the mere fact of partition on the authority of the case in Rama Charan v. Pyari Mohan (1926)13 AIR Cal 433. That may be so. But in this case since the land is included in the area allotted to the plaintiff on partition, he is prima facie entitled to claim rent either from the occupant or from the (holders of any intermediate tenancy that has been established between him and the tenants. Such intermediate tenancy is still in existence after partition.
4. In order to establish the case against the plaintiff it is necessary to show that there was no common tenancy. The onus is on the defendant to show that there is no such tenancy. The findings of the Court below seem to show that the defendant has failed to discharge that onus. This view is in accordance with the decision of the Full Bench of this Court in Niranjan Mukherjeo v. Soudamini Dasi (1926) 13 AIR Cal 714. If the land had been held by the lessors in severalty, the decree would be binding on the plaintiff. But it is for the defendants to show that separate possession was given to the lessors by such formal agreement as is referred to in Sections 76, 77 and 78, Estates Partition Act. The case in Rama Charan v. Pyari Mohan (1926) 13 AIR Cal 433 which has been relied on by the learned Special Subordinate Judge is not directly in point, inasmuch as in that case the learned Judge held that the plaintiff must make out a case under Section 99, Estates Partition Act, whereas in the present case that section does not apply. Again the learned Judge in Rama Charan v. Pyari Mohan (1926)13 AIR Cal 433 founded their decision (as does the Subordinate Judge in this case) on the fact that there is no presumption in law that the estate was held in common from the mere fact of partition. That is no doubt so. But with due respect to the learned Judges who decided Rama Charan v. Pyari Mohan (1926)13 AIR Cal 433 it appears to me that where a tenancy is joint it must be held that all the cosharers have a joint interest in every part of the tenancy until the contrary is shown. Therefore in this case as defendant 14 says that his lessor had an interest in the land in suit not affected by the partition it is for him, if he wishes to resist ejectment by the plaintiff, to prove that his lessor had the consent of the cosharers to create such an intermediate tenancy. No such evidence has been given. Accordingly the plaintiff is entitled to succeed and to recover rent at the rate claimed since the rate of rent has not been disputed by the tenant defendant.
5. The appeal is accordingly allowed. The decree of the lower Appellate Court is set aside and that of the Court of first instance is restored. Defendant 14 is to pay costs to the plaintiff in this Court and the Court of Appeal below.