Authored By : Mookerjee, Edmund Pelly Chapman

Mookerjee and Edmund Pelly Chapman, JJ.

1. This is an appeal by the Plaintiffs in a suit fordeclaration of title to land and for ejectment of the Defendants therefrom. Thecase for the Plaintiffs is that the disputed lands were included in a revenuepaying estate owned by themselves and by their co-sharers and that theDefendants held them as a tenure under the co-sharers to whose exclusive sharethey had been assigned by private partition. Thereafter, on a partition of theentire estate by the Collector under the Estates Partition Act, these landswere allotted to the Plaintiffs, but they were unable to obtain possessionthereof, as the Defendants set up their right to hold them as their tenure. ThePlaintiffs accordingly instituted this suit to establish their title and toeject the Defendants on the ground that their tenure was operative, not uponthe lands assigned to the Plaintiffs, but upon those assigned to theirgrantors. The Defendants denied the truth of the allegation of a prior privatepartition amongst the proprietors and asserted that as their tenure was heldunder all the co-sharers, the Plaintiffs were not competent to avoid it. Onthese pleadings, the issue was raised whether there was a private settlementamong the proprietors as regards the possession of the lands of the originalestate as stated in the plaint. The trial Court found on the evidence thatthere was a private settlement among the co-sharers of the estate whereby eachof them came to be in separate possession of distinct parcels of land. TheCourt also found that the tenure was held, not under the entire body ofco-sharers but under some of them only and that of the share owned by thePlaintiffs one-twelfth had been derived from the grantors of the tenure. TheCourt-thereupon held that the Plaintiffs were entitled to eject the Defendantsfrom the remaining share of the lands. On appeal by the Defendants, theSubordinate Judge affirmed the findings of the first Court that there was aprivate division of the lands to which all the joint proprietors had agreed andupon which they had all acted. In this view the Subordinate Judge held that thepartition by the Collector had not affected the tenure, as the Defendants werenot and could not be parties to the partition proceedings and that thePlaintiffs had taken the lands allotted to them subject to the tenure held bythe Defendants. The Plaintiffs have appealed to this Court against the decreeof dismissal made by the Subordinate Judge and have contended that underSection 99 of the Beng. Act V of 1897 the lands in their hands are not subjectto the tenure set up by the Defendants In support of this view, reliance hasbeen placed upon the decision in Joy Sankari Gupta v. Bharat Chandra BardhanI.L.R. (1899) Cal. 434.

2. Section 99 of the Estates Partition Act is in theseterms: "if any proprietor of an estate held in common tenancy and broughtunder partition in accordance with this Act, has given his share or a portionthereof in patni or other tenure or on lease or has created any otherencumbrance thereon, such tenure, lease or encumbrance shall hold good asregards the lands finally allotted to the share of such proprietor and only asto such lands." It is hence essential, to make the section applicable,that the estate should be held in common tenancy. On behalf of the Appellants,it has been contended that an estate must be deemed held in common tenancy solong as any incident thereof, for example, the liability to pay GovernmentRevenue, continues joint, although the lands may have been divided and are heldin severalty. This contention is opposed to the decision in Abdul Latif v.Amanuddi (1911) 15 C.W.N. 426; there it was held that the words "estateheld in common tenancy" are used in contradistinction to an estate held inseveralty among the proprietors themselves by private arrangement, as is clearfrom the examination of Sections 5, 7, 63, 76 and 79 of the Estates PartitionAct. This decision is in conformity with the earlier case of Hriday Nath v.Mohobutnessa I.L.R. (1892) Cal. 285 which interpreted the corresponding sectionof an earlier statute (Section 128 of Act VIII of 1876. B.C.). An examinationof the decision in Hridoy Nath v. Mohobutnessa I.L.R. (1892) Cal. 285 showsagain that the view there taken was in accord with a long line of authoritiesdecided under the corresponding provisions of Regulation XIX of 1814:Ahmedoollah v. Ashraf Hossain (1870) 13 W.R. 447, Obhoy charan v. Hari NathI.L.R. (1881) Cal. 72, Juggesur v. Bissessur (1882) 12 C.L.R. 281. Theposition, therefore, is that under the Estates Partition Act, 1876, this Court,on an elaborate review of the previous state of the law, came to theconclusion, in Hridoy Nath v. Mohobutnessa I.L.R. (1892) Cal. 285 that theprinciple embodied in Section 128 was applicable only where, the lands of theestate were not held in severalty. The legislature in 1897 proceeded,presumably with full knowledge of the judicial interpretation of Section 128,to reproduce its provision without any variation as Section 99 of Act V of1897. The inference seems irresistible that the judicial interpretation ofSection 128, to which we have referred, correctly represented the intention ofthe Legislature; for it is a well settled principle of construction that theLegislature is presumed to know, not only the general principles of law but theconstruction which the courts have put upon particular Statutes. In the wordsof Lord Campbell C.J. in Mansell v. Queen (1857) 8 E. and B. 54, 73 and JamesL.J. in Ex parte Campbell (1870) L.R. 5 ch. App. 703, "where a section ofan Act, which has received a judicial construction, is re-enacted in the samewords, such re-enactment must be treated as a legislative recognition of thatconstruction." The inference is therefore perfectly legitimate that theLegislature has, in the new Act of 1897, adopted the settled judicialconstruction which is thereby sanctioned and intended to be continued in force:Jogendra Chandra Roy v. Shyam Das I.L.R. (1909) Cal. 543, 546. We holdaccordingly, on the authority of the decision in Hridoy Nath v. MohobutnessaI.L.R. (1892) Cal. 285 which has been accepted as good law applicable to Act Vof 1897 in Aimanaddi v. Nabin Chandra (1909) 11 C.L.J. 95, and Abdul Latif v.Amanuddi (1911) 15 C.W.N. 426, 428, that Section 99 applies only where thelands are held jointly by the proprietors and not in severalty in pursuance ofa private arrangement between the parties. This view is not opposed to thedecision in Joy Sankari v. Bharat Chandra I.L.R. (1899) Cal. 434, where thelands were held, not in severalty but in common tenancy. In these circumstancesit was ruled, on the authority of the decision of the Judicial Committee inByjnath v. Ramoodeen (1873) L.R. 1 IndAp 106, that when on partition by theCollector, any land of an undivided joint estate which had been encumbered byany co-sharer was allotted to any other co-sharer, the latter took it free fromthe encumbrance so created. But we may observe that the decision in Ahmedoolahv. Ashraf Hossain (1870) 13 W.R. 447 which was followed in Hridoy Nath v.Mohobutnessa I.L.R. (1892) Cal. 285, is not, as is assumed in Joy Sankari Guptav. Bharat Chandra Bardhan I.L.R. (1899) Calc. 434, inconsistent with and hasnot consequently been over-ruled in effect by the decision of the JudicialCommittee in Byjnath v. Ramoodeen (1873) L.R. 1 I.A 106. As explained in HridoyNath Mohobutnnessa (1892) I.L.R. 20 Calc. 285 which was not brought to thenotice of the Court in Joy Sankari v. Bharat Chandra (1899) I.L.R. 26 Calc. 434the lands in Ahmedoollah v. Ashraf (1870) 13 W.R. 447 were held in severalty,while the lands in Byjnath v. Ramoodeen (1873) L.R. 1 I.A 106 were held incommon tenancy. This distinction explains the cases of Venkatarama v. Esumsa(1909) I.L.R. 33 Mad. 429, Shaikh Nura v. Baikuntha Nath Roy (1913) 21 C.L.J.596, Brojo Nath Saha v. Dinesh Chandra Neogi (1910) 21 C.L.J. 599, Tarini Kantov. Iswar Chandra (1912) 21 C.L.J. 603 where the decision in Joy Sankari v.Bharat Chandra (1899) I.L.R. 26 Calc. 434 was followed. In the case before us,the Courts below have concurrently held that the lands were, under privatearrangement, held in severalty and not in tenancy in common ; consequentlySection 99, Act V of 1897, has no application. The inference follows that theplain tills have taken the disputed lands subject to the tenure of theDefendant and are not entitled to eject them.

3. It has been finally argued that the Defendants shouldnot be allowed to defeat the claim of the Plaintiffs when it has been foundthat their allegation is untrue on the facts in our opinion there is no forcein this contention. No doubt, as was laid down in the cases of Shibkristo v.Abdool (1879) I.L.R.5 Calc. 602, Ramdoyal v. Junmenjoy (1887) I.L.R. 14 Calc.791, 793 and Balmukund v. Bhagwandas (1912) 15 Bom. L.R. 209, a Plaintiffcannot be allowed to abandon his own case, adopt that of the Defendant andclaim relief on that footing. Here, however, what has happened is that eachparty failed to realise the legal effect of the facts alleged by him ; theparties went to trial on the substantial issue in the case, namely, whether ornot there had been a private partition of the lands prior to the partition bythe revenue authorities and whether the tenure of the Defendants was created bythe entire body of landlords or by some alone of the shareholders in respect ofspecific lands allotted to them. This question has been answered against theDefendants and in favour of the Plaintiffs, but that does not prevent theDefendants from contending that even on the facts found the claim for ejectmentcannot be sustained.

4. The result is that the decree of the Subordinate Judgeis affirmed and this appeal dismissed with costs.

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Nagendra Mohan Royvs. Pyari Mohan Saha (28.04.1915- CALHC)