1. The question of law raised by this appeal is whether the purchaser of a portion of a nontransferable occupancy holding can successfully resist the suit for eviction brought by a cosharer landlord to whom the portion purchased has been allotted exclusively by a partition by the Collector under the Estates Partition Act 5 of 1897 (B. C ) made subsequent to the date of the purchase. Both] the Courts below have answered this question in the negative. The question in this appeal is whether those decisions are right.
2. The relevant facts necessary for the determination of this question are few and may be briefly stated thus: The plaintiff, now respondent, was the owner of an 8 annas 5 gandas share in a revenue paying estate bearing Touzi No. 420 in the Tipperah Collectorate records; under the 16 annas proprietor of this estate there was a nontransferable occupancy holding standing in the name of one Brojobasini Bhowmik; this holding consisted of lands which are in dispute in the suit in which this appeal arises and other lands; on 24th Palgoon 1320 B. S. defendant 1 purchased in the name of his wife defendant 2 the lands now in suit; by a partition under the Estates-Partition Act (5 of 1897 B. C.) the lands in suit were allotted to the share of the plaintiff and the rent also was split up so that the plaintiff became the 16 annas proprietor of the tenancy which consisted of the disputed lands. The plaintiff States and it is common ground that the original tenant is not in possession of this new holding and that she has not paid rent in respect of the same. The plaintiff accordingly has brought the present suit against the defendants alleging that they are transferees of the entire holding under the plaintiff and as the holding is a nontransferable occupancy holding the defendants are trespassers and have no right to be on the land. Defendant 1 disclaimed any interest in the disputed land and said that his wife defendant 2 was the real purchaser. Defendant 2 raised several defences but it is necessary to notice only one of them for that is the only defence which is relied on before us. She contends that the plaintiff cannot evict her as she is not bound by the butwara (partition proceedings) and therefore the entire holding has not been transferred and plaintiff is not entitled to re-enter as the original tenant is in possession of a part of the original holding. This defence has been overruled by both the Courts. They held that the partition had the effect of dividing the entire holding and the plaintiff had by the partition become the sole landlord with regard to the disputed holding and as the defendants have not been recognized by the plaintiff the latter has become entitled to khas possession of the disputed lands.
3. In second appeal against the concurrent judgments of the Courts below it has been argued (i) that the effect of the division of the lands under the Estates Partition Act was merely to split up the rent and not to divide the holding and (ii) that if the division has such effect it cannot affect the rights of the defendant which they enjoyed before such partition. The argument on the second point is put in this way: It is said that defendant 2, being the purchaser of a portion of the nontransferable holding they could not be evicted by the entire body of proprietors in the absence of evidence of abandonment or relinquishment of the holding by the original tenant, Brojo Basini and there is no evidence that she has quitted the other part not transferred and in support of this proposition reliance is placed on the decision of the Full Bench in Dayamoyi v. Anand Mohan Roy  42 Cal. 172.
4. With reference to the first point taken it is clear from an examination of S. 81, Estates Partition Act that the effect of) the partition of the holding is to divide it into two or more parts. It has not simply the effect of the splitting up the rent of the holding. The language of the section is plain and can lead to no other conclusion. This view also is in accordance with a line of authorities of which the case of Protap Chandra v. Kamala Kanta  10 C. W. N. 818. may be referred to as the type. It has not been contested in this case that notices were served on the original tenant under Section 81 of the Act.
5. The second point raises a question of some difficulty and there is divergence of opinion on the question. The case which favours the contention of the appellant is the decision in the case of Adam Ali v. Chandu Molla : AIR1928Cal876 . We sent for the paper book in that case, and we find that in that case it was assumed that the notices under Section 81, Estates Partition Act, were served, having regard to the provisions of Section 114, Evidence Act, regarding the regularity of official acts. The tenants however pleaded that they did not receive any notice. When the learned Judges say in that case that the partition was 'not with the concurrence of the tenant' it may be that the tenants in that case did not appear in the partition proceedings. In the present case notices were served and it cannot be said that the partition was without the tenants' assent. But that circumstance does not really matter. In this case notices were served under Section 81, Estates Partition Act, on the tenant and it must be assumed that she did not object to the partition. The position is this that before the partition the entire body of landlords could not have ejected the defendant who was purchaser of a portion of the holding as there was no abandonment by the original tenant. The question is whether after the partition when the cosharer landlord becomes the sole landlord and the tenancy is split up as the lands are divided between the different coproprietors whether the sole landlord cannot say to the purchaser of the part which has now become a whole holding that he is a trespasser. Is this right of the purchaser of a part of the holding a sort of incumbrance created by the act of the tenant which is binding on the cosharer 'landlord who has become the sole landlord? Can the sole landlord after partition be compelled to recognize the purchaser of a part of the holding for that is the effect because the original tenant is in possession of other part of the original tenancy which has now fallen to the share of the other proprietor? So far as the disputed lands are concerned it is found that the original tenant is not in posession. I find it difficult to persuade myself to hold that the purchaser of a part has any such right. B. B. Ghose, J., is constrained to hold in the case in Adam Ali v. Chandu Molla : AIR1928Cal876 that the position is somewhat anomalous that notwithstanding the separation of the original holding into different parts by which different holdings were created an artificial link would remain which bind the new holdings together and yet yields to this view.
6. Is the right of the transferee of a part a right to be able to resist the landlord's suit for possession under all circumstances or is it one to resist the suit so long as the tenancy remains undivided and the land sold remains a part of one holding? I am rather inclined to think that the right of the purchaser is liable to be affected by the partition of the holding and I agree in the view taken by my learned brother Suhrawardy, J., and my learned brother Graham, J., in the case of Haran Chandra v. Behari Lal Bhunia : AIR1928Cal560 .
7. B.B. Ghose, J., bases his decision on an, obiter dictum of Sir Edward Chamier, C. J., of the Patna High Court for in the Patna case the transfer was of a transferable occupancy holding: Suraj Deo v. Puchnarain Sing  39 I. C. 93. In that Court again there appears to be a divergence of opinion as is pointed out in the decision in Haran Chandra v. Behari Lal Bhunia : AIR1928Cal560 to which my learned brother was a party. The tenant could by selling the remaining plots to some other person have put the landlord in a position to eject the defendant. The position of a transferee of a portion of a nontransferable holding is a somewhat precarious one and in our opinion is liable to be affected by the compulsory partition.
8. We think the Courts below have taken the right view and that the appeal must be dismissed with costs.
9. I agree.