Judgement

Consolidated Appeal (No. 55 of 1925) from three decrees of the High Court (April 24, 1923) reversing three decrees of the Additional District Judge of Faridpur (May 26, 1919) which reversed three decrees of the Subordinate Judge of Faridpur.

The three suits giving rise to the consolidated appeal were brought by the appellants against the principal respondents, and claimed that under putnis given to them, or their predecessors, about 1868 they were entitled to possession of lands which the defendants had received upon a partition under the Estates Partition Act, 1897.

The substantial question in the appeal was whether s. 99 of the above Act was applicable.

The District Judge (reversing the trial judge) held that the above section applied and made decrees in the plaintiffs favour.

On appeal to the High Court the learned judges (Chatterjea and Graham JJ.) considered that the findings of the District Judge did not preclude them in second appeal from holding that the estate was not held in common within the meaning of s. 99. In so holding they followed Nagendra Mohan Roy v. Pyari Mohan Saha. (I. L. R. 43 C. 103.)

The view of the learned judges is more fully stated in the judgment of the Judicial Committee, from which the material facts and the terms of the relevant provisions of the Act appear.

1927. Feb. 10, 11. Sir George Lowndes K.C. and F. B. Raikes for the appellants.

H. N. Sen for the respondents.

March 4. The judgment of their Lordships was delivered by

LORD PHILLIMORE. On April 9, 1868, the principal respond ents gave putnis or perpetual leases of certain properties to the present appellants or to persons from whom the present appellants derive title.

The material part of one of the putnis is expressed in the following terms " The zamindari No. 2049 of the aforesaid pargana, standing in the names of the Chowdhuries, and held in our ownership, is recorded in the Collectorate of district Backergunj at a sudder juma of Rs. 1280-15-6 ½ pies. A 12 gundas 1 kara 13 tils 1 ½ krant share out of the 1 anna 11 gundas 2 karas of the 1 anna 14 gundas hissya of Raghu Nath Chowdhury appertaining to the 8 annas 10 gundas hissya of the aforesaid zamindari, that is, a 6 annas 5 gundas share out of the aforesaid 1 anna 11 ½ gundas hissya taken as 16 annas, belongs to us, and of which we are in enjoyment and possession on payment of the sudder rent. As we are unable to till, cultivate and settle the lands appertaining to the aforesaid hissya, we, of our own accord, grant you in writing a putni talukdari pottah of mauzas Chhoto Dumaria, Gopalpur, Narayankhana, Dharabashail, Kandi, Suagram, Shalukha, Chhatian, Patiljhapa, Bahirshamli, Korya, Rarirbilla, Ghagharkanda, except the debottar, and the kismats appertaining thereto, at the annual rent of Rs.145." The other putni is in similar terms.

The zamindari in question is of a very great extent, and, as appears from the passage in the putni lease which has just been quoted, the ownership of it has broken up into various divisions and subdivisions. There are said to have been 300 proprietors.

In 1897 a purchaser from one of these sharers applied under Ben. Act V. of 1897 for a partition. This application was resisted by some of the other proprietors; but the collector granted it, and in process of time a regular partition was effected, and the property was divided into twenty-eight different estates.

As a result of this partition, the mauzas allotted to the respondents were not those mentioned in either of the putni leases of 1868.

Thereupon the appellants, relying upon s. 99 of the Estates Partition Act, claimed that their putni leases should be held good as regards the lands allotted under the partition to the respondents, and this claim being resisted, they brought three suits, which have now been consolidated, for possession and mesne profits.

The Subordinate Judge dismissed the suit. On appeal the District Judge reversed that decision, worked out the extent to which the appellants w