Judgment:
Dalal, J.
1. The plaintiffs' occupancy tenants to the extent of 1/3rd in the occupancy holding sued for possession of specific plots on the ground that the holding had been divided between them and the defendants and they had been in possession of these specific plots from which they had been unlawfully ejected. The learned Munsiff was of opinion that such a suit for specific possession was barred under the provision of Section 32(2) of the Tenancy Act and granted to the plaintiffs joint possession with the defendants to the extent of 1/3rd of the entire holding.
2. On appeal by the plaintiffs the learned District Judge was of opinion that a suit for possession in pursuance of existing facts and previous separate possession of co-tenants was not a suit or other proceeding for the division of a holding or distribution of rent thereof and was not barred by any provision of the Tenancy Act. The matter is concluded by a decision in Letters Patent of a Bench of this Court in Raghunath Kalwar v. Bala Din Kulwar (1911) 33 All 143. The case was first heard by one learned Judge and afterwards by another learned Judge as the first Judge omitted to sign the judgment. The Letters Patent Appeal was heard by two other Judges. So in reality the opinion to that effect was confirmed by four learned Judges of this Court. In that case a former decree was pleaded as res judicata and the defence was that the decree was inoperative as having been passed contrary to the provisions of Section 32(2). The judgment pleaded as a bar was delivered in a case similar to the one here. The learned Chief Justice observed:
There is no objection to joint tenants agreeing among themselves to occupy and cultivate distinct parts of the joint holding, provided, that their so doing in no respect prejudices the rights of the land-holder.
3. The other learned Judge (Banerji, J.) said:
The former suit was not one for partition of a holding or the distribution of the rent thereof but was a suit for exclusive possession of certain plots of land which the then plaintiff claimed to be separate property. The Court which tried that suit had jurisdiction to entertain it.
4. The learned Counsel for the defendant-appellant referred to three former rulings of this Court : Achhey Lal v. Janki Prasad (1906) 29 All. 66, Ashiq Husain v. Asgari Begam (1998) 30 All. 90, Najib Ullah v. Gulsher Khan (1909) 31 All 348.
5. In the Full Bench case the case reported in Achhey Lal v. Janki Prasad (1906) 219 All 66, was distinguished because the parties in that case had only the shadowy right of the mortgagees of an occupancy holding. The case reported in Ashiq Husain v. Asgari Begam (1908) 3 All. 90, did not depend upon any previous division but desired the Court actually to divide the holding. Such a suit would naturally offend against the provisions of Section 32(2), I do not think that the ruling in Raghunath Kalwar v. Bala Din Kalwar (1911) 33 All. 143, is in any way in conflict with former rulings of this Court. When once co-tenants are in separate possession of separate plots out of the holding and one of the co-tenants is dispossessed, he is entitled to sue for specific possession of the plots from which he is dispossessed so long as the suit is instituted against the co-tenants and not the landlord. Such possession does not in any way interfere with the rights of the landlord.
6. I dismiss this appeal with costs which shall include here counsel's fees on the higher scale.