Patna High Court
Babu Tilakdhari Lal And Anr. vs Mr. Abdul Wahab Khan And Ors. on 6 March, 1925
Equivalent citations: 89IND. CAS.913, AIR 1926 PATNA 112
JUDGMENT Dawson Miller, C.J.
1. The appellants in this case instituted a suit for partition of an estate comprising four mouzas and bearing Tauzi No. 4920 on the Revenue Roll of the Collector of Monghyr. The appellants are admittedly entitled to a share in the estate amounting to a fraction over 7 annas of the whole. The defendant first party Abdul Wahab Khan who alone has actively resisted the claim for partition, and who maybe referred to as the respondent, is entitled to a 3-annas share whilst the remaining defendants classed as second party defendants are entitled amongst them to the remainder amounting to a fraction over 5 annas.
2. The estate was at one time part of a larger mahal but more than forty years ago, at some date not definitely specified, it was formed into a separate revenue paying estate bearing the Tauzi Number-already mentioned. At the earliest time to which the evidence relates it belonged; to three persons named Hansraj Singh Tota Ram Singh and Bhakan Singh who admittedly held it in co-parcenary. It is the case of the respondent that these three original proprietors separated and by a private arrangement partitioned the property between them by metes and bounds, each taking a third share but that certain of the uncultivated lands remained ijmal, Since then it is also said that their successors or at least the successors of one of them have on more than one occasion made sub-divisions of their interests of formal partition. If this state of affairs can be made out then the plaintiffs would, not be entitled to a partition of that which has already been transferred into separate ownership. The respondent also claims title by adverse, possession of the land now in his actual possession. It is upon these questions that the determination of this appeal depends.
3. The Subordinate Judge accepted the evidence of the respondent's witnesses as sufficient to prove that a partition had previously taken place between the original proprietors and considered that the evidence of the appellant's witnesses was to some extent corroborative of the respondents case. He also appears to have thought that the Record of Rights finally published in 1903 supported, tile case of a previous partition. He further found that the respondent had acquired a title by adverse possession to that part of the estate in his actual possession.
4. The plaintiffs have appealed and contend that the verbal evidence in support of the respondent's case is not reliable and that the documentary evidence and the Record of Eights entirely support their case.
5. It is necessary to bear in mind that it is not disputed that for a number of years the different proprietors have had separate collections of rent from the tenants, on certain portions of the land which rents they have appropriated to their exclusive use without claim to participation by other co-sharers. In other portions of the land the tenants have paid their rent to each of the proprietors or sets of proprietors according to their shares in. the estate, as would be the case where there is joint ownership, whilst other lands again have remained joint being uncultivated, and these are recorded as gair-mazrua in the Record of Eights. It is the appellants contention that the estate originally consisted of three kinds of land, (a) kamat lands in the private and exclusive cultivation of the proprietors, (b) vial, lands or lands in the possession of cultivating tenants, and (c) uncultivated lands including dhab jhil and jungle. There can be no doubt that some forty odd years ago or thereabouts during the time of Hansraj Singh and his co-proprietors some arrangement was come to whereby possession of a portion of the lands was distributed between them. Whether this was merely for purposes of management or in pursuance of a formal partition of estate is the main question for decision. The appellants say that it was only the kamat lands that were thus divided and that the arrangement come to was for purposes of convenient management and as a modusvi vendi without any formal partition of the estate by metes and bounds, a thing not uncommon with regard to the proprietors private lands in cases of joint ownership. The mal or rent paying lands on which tenants were settled, according to the appellants case, were not dealt with in this manner, each tenant continuing to pay rent as heretofore to the proprietors jointly according to their respective Shares whilst the uncultivated jungle, jhil, and dhab lands also remained unappropriated. The kamat lands which are proprietors' private lands and over which the acquisition of occupancy rights by raiyats is restricted by the provisions of Section 116 of the Bengal Tenancy Act, may in cases where they are settled, but not from year to year or for a term of years, become subject to occupancy rights in the tenant and thus lose their original character. It is the appellants' case, that this change, has in course of time, taken place which partly accounts for the fact that rents are in some cases paid to a single proprietor or set of proprietors representing the share or interest in a share of one of the three original owners, whilst in other cases waste lands have become fit for cultivation and have been settled by one or other of the proprietors with new tenants who pay rent exclusively to him. There is nothing to show that the rents so paid have ever been proportionately distributed between the different landlords, but this, it is contended, would not in itself operate as an ouster; nor does it necessarily indicate a formal partition. The appellants point to the fact that over a considerable area of the estate the rents are paid to the proprietors jointly. This area they say forms the original mal lands and negatives a partition by metes and bounds, for had a partition taken place, such lands would inevitably have been divided as no one ever heard of a partition which left undivided the lands in possession of cultivating tenants paying rent for their holdings. They also rely upon the fact that the lands in regard to which the respondent has now exclusive collection of rents are considerably in excess of his proportionate share of 3-annas which could not be the case if there had been a rateable distribution of the property by metes and bounds forty years ago.
6. The respondent on the other hand contends that the existing features may be explained by the fact that originally a portion only was under cultivation and the rest was parti land or dhab or jhil land uncultivated and not partitioned, but that Has in time came to be re-claimed and settled with tenants by one of other of the proprietors on behalf of all the tenants paying their rent to each proprietor according to his sharer. The defendants witnesses in order to demolish the plaintiffs' theory have sworn that there never were any kamat lands in the estate at all, but the documentary evidence is conclusive on this point and shows that kamat lands existed and have retained their old name although their characteristic features have changed They endeavour to explain the disproportionate share held by the respondent by saying that he took an inferior class of land from his transferor one of the original proprietors and consequently got a larger area.
7. The present state of affairs may quite possibly be explained on either hypothesis. But there are, in my opinion, certain facts in the case which point strongly to the absence of any formal partition having taken place. If a formal partition into separate puttis had been effected we should expect to find at least some document to support it but none Ins been produced.
8. It is said that khesras were prepared at the time of the original partition as well as at the subsequent partition between the respondent's father and Ram Kishun the son of Hansraj Singh but no trace of them remains.
9. The respondent's estate on the death of his father was under the management of the Court of Wards which surely would have preserved these valuable documents had any such existed. One witness suggests that the respondent's khesra was stolen by one Nabi Buksh. He admits that although the thief was known no attempt was made to prosecute him or to recover it back. Another witness a Sub-Inspector of Police who was dismissed from the service in 1912 says that Nabi Buksh was prosecuted, for stealing some papers from the box of Nawab Khan after his death.
10. Such documents as there are point to a conclusion favourable to the appellants. The respondent's title deed of 1888 by which his father purchased his interest, from Rim Kishun the son of Hansraj, one of the three original proprietors, although it recites the batwara partition by which the present estate Tauzi No. 4920 was separated from the parent mahal sometime earlier, makes no mention of any subsequent partition between the three original proprietors although it must have happened only some ten years or so earlier on the respondent's case. What Nawab Khan the father of the respondent purchased was a 3 annas share out of the 5 annas odd share of Ram Kishun and not any specific tends defined by metes and bounds. The deed also mentions mal and kamat lands.
11. In the suit brought by the Court of Wards on behalf of the respondent and his family against certain tenants under Section 105 of the Bengal Tenancy Act in 1903 for additional rent in respect of encroachments, the plaint states that amongst the proprietors there is a distribution of tenants, a very different thing from partition, and that some tenants are joint among the maliks of 16 annas. It further states that the defendants (the tenants in that suit) have cultivated baharsi and parti lands belonging, not to the plaintiffs, but to the proprietors without their permission and prays for additional rent for the additional area. Included in the reliefs sought is a prayer that the plaintiffs may be held competent to realise the same. This surely indicates a consciousness that the tenants, although paying their rents to them by the distribution, were not the tenants of land in their exclusive ownership, and implies that apart from the distribution arranged between the owners it would be necessary to make the other proprietors plaintiffs, in other words it indicates an agency on the part of the plaintiffs in that suit, bringing the case within the provisions of Section 188 of the Bengal Tenancy Act.
12. Again in 1917 Abdul Wahab Khan the respondent sued one of the tenants for: rent. In the plaint, he describes himself as a shareholding proprietor of 3 annas out of 16 annas and states that his collections are separate from other co-sharers and he claims the whole rent as appertaining to his share. Surely this was meaningless if there had been a partition and the land had been divided amongst the 16 annas proprietors. It must be remembered that it is the respondent's case that where the rent is paid exclusively to a single proprietor, the land for which rent is paid is his exclusive property by the partition. Finally the Record of Rights also shows that the proprietors are all jointly interested in the whole estate. There is only one khewat for them all, although they have in certain cases separate accounts with the Collector. Had there been a partition, this matter must have been brought to the notice of the Settlement Officers in preparing the Record of Rights finally published in 1903, and a khewat would have been prepared for each proprietor or set of proprietors with a separate denominational number but this was not done.
13. In view of these documents which appear to me to point only to one conclusion, the evidence of partition, given on behalf of the respondent should be closely scrutinized. In so far as it relates to the partition between the original proprietors, it is of the flimsiest character. It is spoken to by men who were not particularly interested in it and who took no part in it, but merely saw some measurements taking place and were told that it was a partition.
14. The first witness upon this point after stating that it took place says that he was 10 or 15 years old at the time and has no recollection at all about it. The next witness Dhautal Gope says he saw the amlas measuring the lands and they said that they were making a partition. He was not present at the kacherry where he says the partition took place. He does not know which putti was given to which of the parties.
15. The next witness Bahore Das says that raiyati lands and lands fit for cultivation were divided between the proprietors in his presence. After the subsequent partition between Ram Kishun and Nawab Khan he took settlement of 5 bighas from Nawab Khan. This land was covered over with jungle when he took settlement. This hardly looks as if that of which he took settlement was the land originally partitioned between the three proprietors which was cultivable land. He admits that he had rent receipts but he did not produce them and pretends that he does not know if his land is described as kamat in those receipts.
16. The next witness Darbari says that there was a partition between the original proprietors of cultivated lands and lands fit for cultivation and the rest was left ijmal. He saw the amlas measuring the lands and he heard from people that a batwara was being made. He was cutting grass at the time. He had given evidence before the Deputy Collector but he had no recollection when it was put to him of what he said on that occasion about this partition.
17. None of the other witnesses carry the case any further. A few more particulars are given about the later partition between Nawab Khan and Ram Kishun but these also are far from satisfactory. There is not a scrap of documentary evidence to support it and even if a division had been made between Nawab Khan and his vendor this would not be binding upon the other proprietors unless there had already been a partition of his vendors share from that of the other proprietors.
18. The witnesses are not agreed as to the respective positions of the different puttis. None of them can speak as to the position pf the different puttis under the partition between the three original proprietors. They contradict each other as to the position of the puttis sub-divided between Nawab Khan and Ram Kishun. They say that boundary marks were placed but there is no longer any trace of them. They deny that there were any kamat lands which is conclusively proved to be false. They suppress their rent receipts for no apparent reason but other receipts of other tenants paying rents exclusively to the respondent were produced by the appellants and these show that their holdings were kamat lands.
19. One of the witnesses Dhautal Gope says that when the subsequent partition between Ram Kishun and Nawab Khan took place in Mama Dhamara, the whole of the lands in that mauza were measured. If Ram Kishun or Hansraj, his father, had already separated from the other two and got their own putti, the measurement of the whole village was quite unnecessary and would not have taken place.
20. In view of the documentary evidence I feel quite unable to accept this class of evidence as reliable. The appellants' witnesses admit that the original proprietors separated in mess and partitioned their house and that there was a distribution of the kamat lands for purposes of convenient management as frequently happens in such cases but they deny a partition by metes and bounds. In some instances they use language which if taken apart from the context might imply a partition but allowance must be made for this class of witnesses whose language is not always chosen with discrimination. There can be no doubt as to their intention and the evidence recorded is the result of both question and answer as taken down by the Court.
21. Upon a review of the whole of the evidence I am of opinion that no partition ever took place by metes and bounds between the proprietors.
22. With regard to the plea of the respondent that he has acquired a right by adverse possession. I also think his case fails. Every co-sharer has the right to enter upon and occupy the common property and-this in itself does not raise any presumption of a denial of the rights of the other co sharers. Nor is possession in such cases adverse. All the more so is this the case where they all agree for the purposes of convenient management that a certain area shall be occupied by certain co-sharers. It may be conceded however, that possession of one co-sharer thus lawfully acquired in the first instance may become adverse to the others, but mere occupation even for a long period creates no presumption of ouster. There must be open and notorious acts indicating a claim to exclusive ownership in denial of the rights of the other co-sharers before adverse possession can begin to run. As. stated by Mooksrjse, Acting C.J., in 1920 in Balaram Garia v. Shyama Charan Mondal 80 Ind. Cas. 233 : 24 C.W.N. 1057 at p. 1082 : 33 C.L.J. 344, "The law will never construe a possession tortious, unless from necessity; on the other hand it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful; and this, upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. In other words, the only difference between the possession of a co-owner, and other cases is, that acts, which, if done by a stranger, would per se be a disseisin, are in the case of tenancies-in-common, susceptible of explanation consistently with the real title; acts of ownership are not, in tenancies-in-common, acts of disseisin; it depends upon the intent with which they are done and their notoriety; the law will not presume that one tenant-in-common intends to oust another; the facts must be notorious and the intent must be established in proof." In that case two out of the four co-tenants had been in possession for fifty years paying rent and taking the profits. It was held that the two absentee co-tenants had not lost their interest by adverse possession. Whether the principles enunciated were correctly applied to the facts of that case is immaterial. The, principles referred to appear to me incontestable. In the present case I can find nothing in the evidence to indicate an ouster or even an intention on the part of the respondent or his predecessors to assert openly and clearly a hostile title. The respondent's title-deed by which he purchased what would appear to be an undivided share in the estate and his suits against the tenants which indicated a claim to collect rents as agent of all the proprietors points strongly in the opposite direction, and the Record of Rights of 1903, which shows at the most a separate collection from certain of the tenants is not only consistent with the appellants' case but seems to me to prove conclusively that the co-sharers at that time at least were joint proprietors of every portion of the estate as indicated in the kheivat. The only facts which stands out in favour of the respondent on this part of the case is the failure to distribute the rents collected by fhim in excess of his share and the appropriation of the proceeds of the sale under the Land Acquisition Act. This may bar the appellants' right to their share in those profits and proceeds beyond the limitation period but it cannot, in my opinion, deprive them of their proprietary rights, "The appropriation of profits cannot be regarded as notice to the co-sharer that their title was repudiated." See per Stanley, C.J. and Banerji, J., in Har Charan v. Binda 5 Ind. Cas. 559 : 32 A. 389 : 7 A.L.J. 298. Whilst I find certain indications that the respondent considered himself a co sharer only and not a separate proprietor, I can find nothing necessarily indicating a repudiation of the rights of the other co-owners in the land which he now claims as his own.
23. In my opinion the appeal should be allowed with costs to the appellants payable by the respondent first party, here and in the Trial Court.
24. The decree of the Trial Court should beset aside and in lieu thereof a preliminary decree for partition by metes and bounds, of the appellants' share as stated in the plaint should be passed.
Foster, J.
25. I agree.
26. This is an appeal by the plaintiffs in a partition suit. The plaintiffs, as part proprietors of Touzi Estate No. 4920 in the Monghyr Collectorate, sue for the division of the lands between themselves and the defendants. The estate comprises four entire villages, Damhara, Hardia, Balkunda and Bhutauli (otherwise known as Malpa). In itself it was created outside the memory of the present litigation by a partition of Tapa Chautam into three parts, by the Collector. Out of the numerous parties now holding title as proprietors of this Touzi Estate No. 4920, only one of the defendants, Mr. Abdul Wahab Khan, has seriously contested the case, the others praying that if a partition be made they may be given separate takhtas. Mr. Abdul Wahab Khan's case is that this estate was partitioned some 40 years ago between the three proprietors of that time, Totaram Singh, Bhukhan Singh and Hansraj Singh (who had a son Ram Kishun Singh); and that these divisions have been sub-divided on several occasions thereafter. He admits that there is still an undivided area within these four villages, but he accounts for that by saying that the lands were not at the time of partition fit for cultivation though they have in some parts subsequently become cultivable. He admits that he is in possession of better and more extensive ands than the other parties, but he ascribes that to the fact that his father Nawab Khan took as his divided portion lands which for various reasons were considered to be of little value, but which have since been improved by labour and physical change. He also contends that he has acquired title to the lands which he holds in separate possession by adverse possession. He concedes that if the Court thinks it proper to partition the said Touzi estate, the ijmal portion only may be partitioned. It appears that the plaintiffs had before this present suit moved the Revenue Court for a Collectorate partition, but the application was rejected. We are not informed what were the reasons for this decision. The fundamental fact before his is that the proprietors or groups of proprietors have now separate collections of rent from specifically denned holdings of tenants over an area which is a considerable part of the four villages, the residue being joint, a state of affairs which has subsisted for a long time. The most important question in this case will be whether the lands the rent of which are collected separately by the proprietors, are held in several or con current ownership; in other words, whether the defendant Mr. Abdul Wahab Khan is correct in asserting that he has an exclusive title in the lands the rents of which according to the Record of Rights of 1903 are paid exclusively to him. As I have stated already, these four villages belonged originally to Totaram Singh, Bhukhan Singh and Hansraj Singh. At some date, of which we are not informed, these three persons separated in mess and admittedly partitioned their dwelling house. We are informed by the defendant's witness Darbari that Totaram died first then Hansraj and then Bhukhan. Now each one of these three persons transferred the whole or part of his interest. The predecessor-in interest, of Mr. Abdul; Wahab Khan was Ram Kishun Singh son of Hansraj Singh deceased. His conveyance was made in 1888 to Nawab Khan, Abdul Wahab's father, and it passed a three annas share out of 5-annas 14 gandas of the whole estate. It seems to me to be a fact beyond question that Hansraj Singh was collecting rents separately from known number of holdings and that he was interested jointly with. Totaram and Bhukhan in the ijmal collections and lands, but this conveyance of 1888 of a three annas share to the defendant's father does not purport to be a conveyance by meter and bounds of any specified lands, or of a share within specified bounds. I may mention here, as I shall have to discuss the passage later on, that the property conveyed is described as "my whole and entire three annas pucca share which is a fraction of 5 annas 14 gandas pucca (the kuchha whereof by the partition is 8 annas 16-gandas taking fit to be 16 annas) in revenue paying. Mahal Malpa Touzi No. 4920." The other parties including the plaintiffs trace their title to one or other of these three persons Totaram, Hansraj and Bhukhan. Ram Kishun's remaining 2-annas 14-gandas is now owned by two ladies. Looking at the Record of Rights of 1903 we see that Narwab Khan's ton, then under the Court of Wards of estate Ratan, had separate collection of the rents of many holdings as well as joint interest in the ijmal lands, and the general evidence seems to prove that Ram Kishun Singh and Nawab Khan had sometime subsequent to the purchase of 1888, for purposes of collection, distributed tenants between themselves.
27. So the two main issues in the case were whether there had been a previous partition, so as to debar in whole or part the plaintiffs from suing in the present suit, and whether the contesting defendant can make out a separate title by adverse possession. The suit was tried by the Subordinate Judge of Monghyr. He held that (he defendant had proved the previous partitions which he alleged, and he also held that the defendant has been in adverse possession of the lands in his separate possession through his own tenants for over 30 years openly and in denial of the rights of his co sharer. He did not consider that the plaintiff would be entitled to partition the lands which were still in joint possession when he had sued for partition of the whole estate. He, therefore, dismissed this suit. The plaintiffs appeal.
28. I shall first consider the question whether there was a partition, between Hansraj Singh and his two co-sharers, some forty years ago, as alleged. There is, so far as I can find, no document exhibited which clearly points) to such a partition. On the side of the plaintiffs the Cadastral Maps are put forward as showing, when compared with the Settlement Hathtian of 1903, that the holdings from which separate collections of rent are made do not lie in three compact blocks. For instance the red plots, those in which the contesting defendant has separate collections are in many cases isolated and scattered; and so with the other co-sharers' plots. In such circumstances there would be a great chance of confusion, so it is surprising to find that this defendant's For convenience of reference, it may be noted that the Paper Book Part III is being examined in the order in which the documents are printed title-deed of 1888 is a mere transfer of a share in the village and not of lands defined by metes and bounds. At least the vendor Ram Kishun would have been expected to define the boundaries of his own patti of 5-annas 14 gandas. When the vendor was making assurance of title he would surely nor, if he was owner of a separated portion of the mahal, have averred that no settlement at reduced rent had been executed in favour of any person in the whole mahal, and undertaken personal liability for any such subsequently discovered. No doubt there is the mention of pucaa and katcha shares by partition, but this fact must be taken, for its explanation, in conjunction with the whole expression of the document as well as other fasts. In Ex. X, the plaint in a proceeding of 1003 under Section 105 of the Bengal Tenancy Act, the plaintiff (this very defendant) suing alone, asserted that there is distribution of tenants amongst the proprietors, and a particular proprietor realizes independently the rent of a particular tenant. He doss not assert anything more than actual collection of rent and makes no mention of a partition of the mahal. In fact he claims that the tenants are liable to pay rent for the encroachments made upon lands belonging to the proprietors without their permission. So there is a distribution of tenants and no more, a common enough phenomenon in large estates hell in tenancy-in-common. Such a distribution was undoubtedly made two years or so after the conveyance of 1888, between Ram Kishan Singh and Nawab, Khan, and no doubt the distribution was formulated upon the kacha shares, Nawab Khan getting 8 annas 16 gandas and Raj Kishun Singh 7 annas 4 gandas of the total rental of the tenants under Ram Kishun separate collection, It has been shown that the plaintiff's purchases of shared in the village (1904 to 1906 Exs. 2, 3, 5, 7) were similar to that of the contesting defendant in this respect, that there was no Specification of separated lands within the mahal. Nor is anyone of the very numerous conveyances that must have taken place, considerably increasing the original number of 3 co-sharers, produced to show a state of several ownership, There are in the Khewat of 1903 twenty co-sharers, with nine separate revenue accounts. In 1917 Mr. Abdul Wahab Khan alone sued tenants for arrears of rent, alleging separate collection of rents from the tenant defendants. This is equivocal, it does not necessarily assert separate ownership. We do not know what were there-suits of these suits. We do know that, a few months after the institution of these suits, this defendant put in his objection in the Collectorate partition case that preceded the present suit, alleging the existence of divided pattis, (Ex. 35). So the existing question was then sub judice.
29. As regards the question whether the separate collection of rents is to be attributed to a separation by partition of the shares of the proprietors, there is an important matter which calls for notice The plaintiffs assert in the plaint that the bakasht lauds in the village are the property of the proprietors, but are not held in due proportion to the shares of the proprietors. The contesting defendant in his written statement asserted that the lands of which separate collections are recorded in the Record of Rights are not kamat lauds. The description of the lands may have arisen as an issue in the case under the Estates Partition Act. Certainly Section 77 indicates in the Explanation that kamat lands though held severalty shall not be deemed to be lands held in severalty as representing several interests; and that the private arrangement which is to give a right to preference of a particular proprietor in a partition in respect of certain lands refers only to those lands hell on a bona fide division of lands held by tenants. Now, we know mat frequently the possession of kamot lands, the private and common property of the landlords, is allotted without reference to the shares. One landlord may be an absentee; his farm servants, ploughs and bullocks are not in the village, and it is not worth his while to put them there. If lands are waste but re-claimable, his co-sharers, unless and until they become openly hostile to his title, will not, by reclaiming the lands (an ordinary process in estate management), be able to assert adverse possession. This is, so far as I can judge, the reason why the Estates Partition Act excludes preferential claims in respect of landlords' private lands.
30. The plaintiffs' witnesses all describe as kamat the lands of which the collection of rents is several. The defendants' witnesses refuse to admit the existence of kamat. The Record of Rights (1903) make no mention of kamat, or its antithesis, mal; it makes no distinction between lands belonging to the proprietors personally and lands in the raiyati stock. In. fact it implies that there is no subsisting kamat, because it states uniformly that the tenants have occupancy (kaimi) rights. I refer to Section 116 of the Bengal Tenancy Act.
31. The matter is one that is not only historically important. If, forty years ago, Totaram Singh and his two co-sharers held a large area of kamat, a considerable part of which had to be re-claimed, they might for convenience of management, but not necessarily for severance of title, divide it up. If by subsequent settlements with raiyats the landlords' title to these kamat lands came to be diminished by the intrusion of occupancy rights, the lands might still be, in the mouths of laymen such as the villagers who have given evidence, described, with an eye to their origin, as kamat; whereas the profession Record of Rights could never give room to such an incongruity. But if the lands were in their origin kamats we have an explanation of the long standing, distribution of management.
32. I find conclusive documentary evidence that there were originally extensive kamat, lands largely waste, increasingly re-claimable, in these four mouzas, and that they were held in separate possession by the co-sharers. The defendant's and the plaintiffs' title-deeds mention kamat. The defendants' plaint of 1903 mentions land "belonging to proprietors." The certificates under the Public Demands Recovery Act, 1904, specify kamat lands. Going on through the documents in Part 111 I could multiply instances of the existence of kamat. Mal is mentioned on page 84. My finding is that there is a very considerable area of these four villages which is clearly ancient kamat, but now obsolete as such, owing to the accrual of raiyati rights. Unequal possession of such kamat lands can, in ordinary experience, be expected in India.
33. Now, let us consider more particularly the conditions of this mahal of four villages. Admittedly there has always been a considerable area uncultivated but re-claimable. The total area of the four villages is very large, and when there is a large proportion of kamat, one can understand that the retention of separate rent collecting and managing staffs by the various proprietors might be necessary under tenancy-in-common, just as much as under several ownership. Another thing to remember is that here we have not a case of exclusive possession. The co-sharers are receiving some of the rents separately; but that does not prima facie indicate any denial of title. But in fact when all the co-sharers have been so to speak, sitting at the same table since they came into possession, consuming the profits for so many years, I do not see how the Court can deem the conditions of the property to have altered by course of law. In all such cases as this where one tenant-in-common gathers more from the common property than what he is entitled to keep, the legal conclusion is only that the co-sharers who have suffered by this temporary exclusion can sue for accounts; there is no necessary conclusion of hostile possession. The khewat of the Record of Rights of Bhutauli (1903) is exhibited in full. It contains one serial number for the score or so of co-sharers. This indicates that each of these co sharers has an interest in every part of the village. I do not see how it can be construed otherwise. Rule 48 of the Rules under the Bengal Tenancy Act (which have the force of law) prescribes that the khewat shall show "the character and extent of proprietary interest." In the Survey Manual there are also some Board's Rules which in themselves are not very clearly expressed, have not the force of law, and are intended as general instructions. We do not know what particular rules were adopted in this Monghyr Settlement. But in pew of Rule 48 and in view of the fact that the character and extent of separation in proprietary interest is usually shown by serial numeration, it seems reasonable to hold that the form of this khewat indicates concurrent ownership throughout the whole village.
34. The defendants' oral evidence as to the partition has yet to be discussed
35. His case is that Hansraj and his two co-shares divided each of the four villages into, three pattis by way of partition, and that Hansraj's share amounting to 5-annas 15-gandas separated by metes and bounds devolved upon his son Ram Kishun. Ram Kishun sold three annas out of this to Nawab Khan and very shortly afterwards made a new partition within the 5-annas 15-gandas patti. Then Ram Kishun sold the residue of his share comprised in the patti of 2-annas and odd and again effected partitions with the purchasers. About these last partitions the witnesses are surprisingly silent. I proceed to consider broadly the evidence as to the earlier partitions.
36. The witnesses are fairly well agreed that Hansraj Singh's partition took place about 45 years ago, so we must expect only the elderly witnesses to be able to talk about it. The seventh witness for the defendant says that he was 10 or 15 years of age at the time and he has no re-collection at all of-the partition. The eighth witness was aged 30 at the time; but he cannot say which patti was given to which of the three co sharers. The next witness is aged 60. Like most of the other witnesses he cannot name or describe the Amin who did the measurement. He was, he says, present at the partition as a Jeth raiyat for eight days. One plot was dealt with at a time and allotted. Each of the three patwaris was taking notes. It is noticeable that nowhere in the documentary evidence is there any copy of these notes, nor any reference to them. The next two witnesses aged 58 and 60 respectively were by standers and repeat vague hearsay. The last witness on this point No. 12 is aged 72 years. It is surprising that he has so little to say about the partition. All that he contributes to the evidence is a statement, which he shortly after withdrew, that the three co-sharers had each his kamat land in his patti, and he defines kamat lands as lands cultivated with the malik's plough and cattle, I am of opinion that this evidence does not suffice to prove a fact, which must have been notorious. It is to be remembered that these villages cover, a very extensive, area and that the partition would have cost, time and labour and money.
37. The alleged partition between Nawab Khan and Ram Kishun has more evidence than the alleged earlier one. The seventh witness for the defendants states that Nawab Khan and Ram Kishun were joint for one year and then had a partition. The partition khesras (or list of plots) were written on behalf of the two parties. He is a tenant of Bhutauli, just like defendant's witness No. 12, but these two men contradict each other as to the relative positions of the two pattis. This witness and some other witnesses speak of boundary marks having been placed, which of course, in such an intricate allotment of plots in an extensive area was advisable and at the same time laborious; but those boundary marks had disappeared when the Survey and Settlement commenced in 1900. The witnesses Nos. 8 and 12 assert that in the course of this partition between Nawab Khan and Ram Kishun the total area of the respective; villages was measured. This is an astonishing statement, if we are to believe that, already these villages had been divided by metes and bounds into three separate properties in the former partition. Obviously: if Ram Kishun had a separate patti it was only necessary to measure that patti for the purpose of sub-dividing it. Witness No. 15 makes an important statement that in this partition copies of the khesras were given to each of the parties. The partition was not made in his presence. Nowab Khan's copy of the khesra was stolen. The defendant does not account for the non-production of Ram Kishun's copy, nor has Ram Kishun been called though he is still alive. As with the alleged previous partition, we find hearsay and indefinite evidence It appears to me that this evidence of the alleged second partition is wholly insufficient and unconvincing.
38. Much is made by the defendant of the statements of the plaintiff's witnesses in their cross-examination. They have certainly never admitted that these four villages were divided by partition. They have admitted and I am quite prepared to believe them for the Record of Rights and all the evidence support them that there were soma separate collections by the co-shares. It appears from the evidence of the patwari that there are seven separate collections in these villages. As the defendants stated in the proceeding under Section 105(1903) there has constantly been a distribution of tenants among the proprietors. The proprietors were originally three in number, but in the course of time, as a result of alienations in detail, there came to be seven groups of separate collections. There is no question that at the same time a considerable area in these villages remained ijmal under joint collection. Admittedly in respect of these ijmal lands there has been no exclusion of any particular co-sharer. No doubt the legal incidents of the old kamat have disappeared, but it appears to be satisfactorily shown that in the time of Totaram, Hansraj and Bhukhan there was a large kamat jagir within each of these four villages. This would account for separate possession by various co sharers. It is a more cheap and efficient method to divide the administration of the common estate than to place the entire management in the hands of one person. The practical defect of distributed administration is that when the estate becomes more sub-divided, it is increasingly difficult to call all the co sharers together for adjustment of account; and adjustment can hardly be made between less than all. This unsatisfactory state of affairs may continue till one of the co-sharers with a large interest takes upon himself to demand a partition.
39. There has been some talk in the case on the defendant's side of improvements to the property effected at the cost of the defendant's father Nawab Khan. It is curious that both in his objection petition (Ex. 35) in the estates partition case of 1918 and in the mouth of his witnesses the defendant attributes these improvements solely to his father, who after all died as long ago as 1894. No improvements since then have been asserted. There is documentary evidence of specific improvements. The oral evidence is meagre. It is not quite clear from the witnesses statements what method Nawab Khan adopted in encouraging reclamation. The actual payments deposed to as made by Nawab Khan are of trifling amounts, where the amount is stated. It should be remembered that the defendant's explanations of the disproportionately large area from which he is collecting separate rents is that his father took waste ands in plenty whilst Ram Kishun took cultivated lands; and the waste lands which were got so cheaply in the partition have now been re-claimed and become valuable. Learned Counsel for the plaintiff has drawn up a tabulated statement abstracted from the Record of Rights showing a total area of all the mouzas of 8,314 bighas and he finds from this Record of Rights that the defendant's three-annas share has separate collection from holdings of 760 bighas whereas the plaintiffs separate collection of 5 annas 15-gandas comes from holdings covering 512 bighas. In such circumstances it is surprising that the evidence of the alleged extensive re-clamation is so meagre, It is probable that when the administration of the landlord's estate was allotted between the co-sharers, the co sharer with the best and the strongest administration would get the lion's share in the steadily increasing reclamations for the reasons that the tenants would be more disposed to come to him than to other for a settlement of the lands. Mr. Abdul Wahab Khan's estate was for a long time in the Court of Wards.
40. Much argument has been expended on the side of the defendant in connection with the separate receipts by co-sharers of compensation money when lands were acquired in 1902 for the Railway. It, appears that the Revenue Officials paid the landlords compensation, in the case where lands were under separate collection of rent to the landlord receiving the rent; and in the result the plaintiffs got a considerably smaller amount of money, than the Court of Wards acting on behalf of Mr. Abdul Wahab Khan. I do not think that any deduction from this fact can be pushed very far. No doubt all through these years the defendant has been owing the plaintiffs their proportionate share in his excessive realisations.
41. The learned Subordinate Judge's discussion of Issue No. 9 depends to an important extent on his previous finding, with which I disagree, that there had been a partial partition of the defendant's share. The separate receipt compensation in the Land Acquisition proceedings is relied upon and also the Record of Rights as showing adverse possession. I cannot filed any open exclusion of his co-sharer's title in any act of the defendant or his father. As between co-sharers, something more than mere separate possession is needed to prove adverse possession. Nowhere can I find any open repudiation of the co-sharer's title. The admitted fact that the Record of Rights was made peaceably without a dispute would show the opposite.
42. There are plenty of authorities, which it appears tome needless to cite, for the proposition that the Court should not readily presume a tortious possession as between co tenants and that the appropriation of profits by one particular co sharer cannot be reasonably regarded as notice to the other co-sharers that their title is repudiated. I may remark that this does not, appear to me to be a case of long exclusive possession raising a presumption of ouster or conveyance. Here the facts are known and the possession has all along been by all the co-sharers though unequally distributed. So I distinguish such cases as Gangadhar v. Par ashram 29 B. 300 : 7 Bom. L.R. 252.