Parmeshari Prasad Singh and Others vs Ramgatia and Others

Rowland, J.—The plaintiffs and the defendants second party were co-sharer landlords holding in village Akhtiarpur Pali, a share amounting to one anna and fifteen dams. A Collectorate partition took place in this village whereby this share was allotted a separate patti of which the above persons became sixteen annas landlords. The defendant No. 1 was an occupancy raiyat having a holding of 2.3 acres which by a sale-deed dated the 2nd January, 1920, he transferred to defendant No. 2 and subsequently by operation of the Collectorate partition an area of 96 acre fell in the patti of the plaintiffs and defendants second party, the remainder falling into the patti of other landlords.

The plaintiffs have sued, making defendants second party pro forma defendants, to eject the principal defendants from this area of 96 acre.

The defence was that formerly whether by private partition or arrangement among the landlords his entire holding was held under Deodhari Singh and Deep Narain Singh to whom exclusively the rent used to be paid. After his purchase defendant No. 2 was recognised by these landlords who received rent from him for the years 1328-1329 and granted him two rent receipts. Accordingly his position cannot be affected by anything that was done in the partition proceedings. The Munsif dismissed the suit and the lower Appellate Court confirmed that decision although it. was found that the receipts were granted by Deodhari Singh and Deep Narain Singh after the date of the final decree of the Collector in the partition proceeding The Sabordinate Judge says, "It is evident that the recognition was made by them when they were certain that the land purchased by defendant No, 2 had fallen into the pattis of other maliks. But I do not think that this is a circumstance which would invalidate the recognition in the absence of any case of fraud or collusion between defendant No: 2 and Deep Narain and Kailash. Singh put forward on behalf of the plaintiffs". If this is a correct statement of the position of Deep Narain and Kailash and it is binding on us as a finding of fact, I do not think that we can acknowledge this recognition of the defendant by them as effective. If the partition was final they had no longer any title. It is suggested for'' the respondents that the partition had not been final u/s 61 of the Estates Partition Act until it was confirmed by the Commissioner. But it is generally understood for all practical purposes that the decision of the Collector is the final decision of the case and I have no doubt that Kailash and Deep Narain as found by the learned Subordinate Judge only granted the recognition to the defendant when they were quite sure that their own interest could not possibly be affected by whatever they did. In the circumstances we must hold that the recognition is not binding on the plaintiffs as an admission of the defendant''s tenancy. To be effective against a third party, Such an admission must have been, at the time when it was made, against the interest or capable of affecting the interest of the person making it.

We must allow the appeal, set aside the decision and the decree of both the Courts below and decree the suit with costs throughout for possession. The Court of first instance will proceed to ascertain the mesne profits.

Das, J.

I agree.