N. Chatterjea, J.
1. The plaintiff and the defen-dant No. 2 are the owners of a jote in undivided share, plaintiff's share being 10 annas and odd, and that of defendant No. 2 a 5 annas and odd. Plaintiff sued to eject the defendant No. 1 to the extent of his share in the jote on the ground that the term of the lease under which the defendant No. I held his share as an underraiyat had expired.
2. The defence, inter alia, was that plaintiff as a co-sharer landlord was not entitled to maintain the suit for ejectment, that plaintiff was a tenure-holder and defendant No. 1 was an occupancy-raiyat and that the kabulyat executed by the defendant No. 1 was obtained by fraud and misrepresentation.
3. The Court of first instance held that the kabulyat was not obtained by fraud or misrepresentation, that plaintiff was a raiyat and the defendant No. 1 an under-raiyat, but that there was no separate holding under the plaintiff and that plaintiff, therefore, could not alone maintain the suit. On appeal the lower Appellate Court left the question of the status of the plaintiff and the defendant No. 1 open but, holding that there could be no eviction of an under-raiyat in respect of an undivided share of land, confirmed the decree of the Court of first instance. The plaintiff has appealed to this Court.
4. The question as to whether the defendant No. 1 is a raiyat or an under-raiyat having been left open by the lower Appellate Court, the arguments in this Court have proceeded upon the assumption that the defendant No. 1 is an under-raiyat.
5. Two questions arise for consideration in this appeal; first, whether there can be a separate tenancy of an under raiyat in respect of an undivided share of land; second, whether there is a separate tenancy of the defendant No. 1 under the plaintiff in respect of his share.
6. As regards the first question, I do not find anything in the law to prevent an under-raiyat having a separate tenancy in respect of an undivided share of land. It is true a raiyat, and an under-raiyat stands in the same position as a raiyat in this respect, is a person who acquires land for the purposes of cultivation and cultivation of an undivided share of a percel of land would ordinarily be meaningless. But the question as to how possession can be exercised by a person who takes settlement of an undivided share of land as A raiyat from one of the co-owners separately is another matter. He may come to an arrangement with the other co-owners or their lessee (if they let out their shares) as to the mode of cultivation just as raiyats who hold lands as tenants-in-common do among themselves. The question is whether, as a matter of law, there can be a separate tenancy of a raiyat or an under-raiyat in respect of an undivined share of land.
7. Before the passing of the Bengal Tenancy Act, a raiyati interest could be acquired in a share of undivided property. In the case of Jardine Skinner & Co. v. Surut Soondari Debi 3 C.L.R. 140 : I.A. 164 the Privy Conncil held that a right of occupancy might be acquired in respect of an undivided share of a property. A similar view was taken in the case of Gur Buksh v. Jeo Lal Roy 16 C. 127 and in the case of Baidya Nath Mondal v. Sudharam Misri 8 C.W.N. 751 it was held that there is nothing in the Bengal Tenancy Act to take away a right of occupancy acquired under Act VIII of 1859 in respect of undivided lands.
8. It is, no doubt, true that under Section 3(9) of the Bengal Tenancy Act, 'holding' means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy and it has been held in several cases that an undivided share of a parcel of land does not constitute a 'holding' as defined by the Act. See Hurry Churn Bose v. Rajah Runjit Singh 1 C.W.N. 521; Baidyanath v. Sheikh Jhin 2 C.W. 44 : 25 C. 917; Haribole v. Tasimuddin 2 C.W.N. 680; Ahdulla v. Gagan Mollah 2 C.L.J. 10. But those cases turned upon the meaning of the word 'holding' as defined by the Act and although an undivided share of land does not constitute a 'holding' within the meaning of the Act, it does not follow that there can be no tenancy of a raiyat in such undivided lands. The cases of Gobind Chandta Pal v. Hamidullah Bhuian 7 C.W.N. 670; Baidyanath Mondal v. Sudharam Misri 8 C.W.N. 751; Feary Mohan Monial v. Radhika Mohun Hazra 8 C.W.N. 315 go to show that even after the Bengal Tenancy Act, there can be a separate tenancy in respect of undivided share of a parcel of land held by a raiyat. The questions whether an undivided share of land held by a raiyat constitutes a 'holding' as defined by the Act, or whether the landlord of such a share can proceed under any of the provisions of the Act relating to a 'holding' do not arise in the present case because according to Section 3(9) of the Act, 'holding' means land held by a raiyat. Under raiyats form a different class of tenants, and in the recent case of Arsadullah v. Munsab Ali 14 Ind. Cas. 349 it has been held that, except where it has been used expressly (as in Sections 113, 121 and 122) or by necessary implication (as in Section 89) with reference to an under-raiyat, the word holding' has in other sections of the Act the meaning assigned to it in Section 3(9) of the Act, i.e., refers to land held by a raiyat. Section 49 of the Act, which provides for the ejectment of a under-raiyat, does not refer to any holding' of an under-raiyat. It merely refers to ejectment of an under-raiyat.
9. I am accordingly of opinion that an under-raiyat can have a separate tenancy in respect of an undivided share of land.
10. The main ground, upon which the learned District Judge has held that plaintiff cannot maintain the suit, is that the ejectment of an under-raiyat can mean nothing less than the complete eviction of the tenant and contemplates the physical process of turning him out and keeping him out of the land in his holding. Joint physical possession by the plaintiff in virtue of his jote right with the defendant still holding under the other landlord as an under raiyat seems to involve a contradiction in terras.' I am unable to agree with this view. Suppose the lands in suit had been in the khas possession of the plaintiff and his co-sharer, the defendant No. 2, and the latter had dispossessed the plaintiff and then let out the lands to the defendant No. 1; plaintiff certainly could have obtained a decree for joint possession in respect of his undivided share with defendant No. 1, i.e., a decree for partial ejectment. If complete eviction is not necessary and joint physical possession is possible in such cases, I do not see why complete eviction should be necessary or why joint physical possession is impossible in the present case.
11. In the recent case of Ram Lochi Koeri v. Herbert Collingridge C.W.N. 397 one of the co-proprietors sued to recover joint possession and in the alternative for khas possession after partition of his undivided share of lands held by the lessee under separate leases from the different co-proprietors on the expiry of the term of the lease granted by the plaintiff. The lands had been in occupation of raiyats but had come into the khas possession of the lessee. The Court gave a decree for possession after partition not because the plaintiff was not entitled to joint possession, but because partition was the most appropriate remedy.
12. The next question is whether the defendant No. 1 has a separate tenancy under the plaintiff. It is true the mere fact that a separate kabulyat is giver by a tenant agreeing to pay rent separately to each co-sharer does not constitute a separate tenancy because it may be perfectly consistent with the continuance of the original lease of the entire lands. If there is merely an arrangement by the tenant to pay each of the landlords his proportionate rent, it does not create a separate tenancy. See Guni Mahomed v. Moran 4 C. 96 : 2 C.L.R. 370; Gopal Chunder v. Umesh Narain 17 C. 695; Baidya Nath v. Jhin 2 C.W. 44 : 25 C. 917. But the original lease of an entire holding may be cancelled or put an end to by the consent of all the parties and the co-sharer landlords and the tenants are at liberty to enter into any fresh contract which the law allows. See Guni Mohamed v. Moran4 C. 96 : 2 C.L.R. 370. Of course, whether a kabulyat creates a new and separate tenancy or not must depend upon its terms. In the present case, it appears that the lands were originally let out to the defendant No. 1 by both the co-sharers Subsequently, plaintiff's co-sharer having sold his share in the iota to the defendant No. 2, both the plaintiff and the defendant No. 2 took separate kabulyats from the defendant No. 1. The boundaries of the entire land were set out in each kabulyat, but the proportionate area in each share was stated to be the land let out. The rents payable to the two sharers were not proportionate to each other nor to the original rent, the terms of leases were different, and the defendant No. 1 agreed by the kabulyat in favour of the plaintiff to go out on the expiry of the term. I do not see how, under these circumstances, it could be said that the original lease was subsisting or that there was not a separate tenancy under the plaintiff. Where, as in the present case, the tenant has by his own act given one co-sharer power to deal with him as if he was his tenant alone without regard to the interest of the other co-sharer, the effect is to create a separate tenancy under such co-sharer. The co sharers in such cases, no doubt, continue to be joint owners but cease to be joint landlords and Section 188 of the Bengal Tenancy Act is inapplicable to such a case. See Panchanan Banerji v. Raj Kumar Guha 19 C. 610; Mutungini Dasi v. Ram Das Mullick 7 C.W.N. 93; Gobinda Chandra Pal v. Hamidulla Bhuian 7 C.W.N. 670 Jognesh Prokash Ganguli v. Maniraddi 35 C. 417. It is true the first case related to a 'tenure' andnot a 'holding,' in the second case the kabulyat was executed before the Bengal Tenancy Act, and it is not clear whether the subject-matter of the last case was a 'tenure' or holding. But the distinction between a tenure' and a 'holding' does not affect the present case for reasons already stated and I refer to those cases only for the purpose of showing that a separate tenancy was held to be constituted in those cases in undivided shares of land under the circumstances stated above.
13. The learned District Judge relied on the case of Gholam Mohiuddin v. Khairan 31 C. 786 in support of the proposition that where a tenant is originally let into possession of land by all the co sharers, a co-sharer landlord is not competent to obtain a partial ejectment of the tenant unless the tenancy is determined by all the co-sharers. I entirely agree with the above view. But in that case, there was no separate kabulyat for a term, as in the present, by the tenant in favour of each of the landlords subsequent to the original lease, agreeing to quit the land on the expiry of the term. In that case, the original lease was subsisting at the time of the suit, here the original lease had been put an end to by the subsequent kabulyats.
14. It will be observed that in none of the cases cited in argument was there a stipulation in the. kabulyat by the tenant to quit the land. In the present case, the suit is based upon the kabulyat whereby the defendant No. 1 agreed with the plaintiff to go out on the expiry of the term of his lease. It is true Section 178 provides that nothing in any contract between a landlord and a tenant made before or after the passing of the Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act. The provisions of the Act relating to ejectment of under-raiyats are contained in Sections 89 and 49 besides Section 66, which does not apply to the present case. Section 89 provides that no tenant shall be ejected from his tenure or holding except in execution of a decree and Section 49 lays down (so far as it is applicable to the present case) that an under-raiyat shall not be liable to be ejected by his landlord except on the expiration of the term of a written lease. The present suit is based upon a kabulyat which provides for ejectment on the expiry of the lease and the suit is brought after the expiry of the term. The defendant No. 1, therefore, cannot resist this action for ejectment.
15. I am accordingly of opinion that if the defendant No. 1 is an under-raiyat, he is liable to be ejected under the terms of the kabulyat. The questions, however, whether he is an occupancy-raiyat and whether the kabulyat had been obtained by fraud or misrepresentation have not been tried by the lower Appellate Court and must be tried The decree of the lower Appellate Court is accordingly set aside and the case sent back to that Court for disposal according to law, Costs to abide the result.