The judgment clarified the requirements for a valid surrender of land and the implications of non-compliance with statutory provisions regarding sale proceedings.

JUDGMENT

Roxburgh, J. - This is an appeal by the plaintiffs who succeeded in the trial Court but whose claim was dismissed by the lower appellate Court. This suit was for declaration of the plaintiffs' jote right and title to the suit lands and for khas possession with mesne profits. Plaintiffs' case was that they had 2/3rd share in the suit lands, defendants 1 to 6 had 1/6th share and defendant 12 1/6 th share and under them one Gayanath had an occupancy holding with a paddy rent of 6 mds., plaintiffs' share being 4 mds. There was a partition of the superior interest along with other properties of the plaintiffs, defendants 1 to 6 and 12, as a result of which lands consisting of the holding of Gayanath was divided into three portions, one each going to the defendants 1 to 6, defendant 12 and the plaintiffs respectively. The suit lands are those parts of the holding which were allotted to the defendants. The decree in the partition suit was made on 14th July 1930. The plaintiffs brought a rent suit (No. 1337 of 1931) against Gayanath making defendants 1 to 6 and defendant 12 parties to the suit and obtained a decree on 21st December 1931. The record does not show for what period rent was claimed in the suit. The plaintiffs obtained a decree and in execution brought the holding of Gayanath to sale on 23rd August 1935 and took possession on 23rd March 1936. Later, they brought a suit for possession u/s 9, Specific Relief Act, on 23rd April 1937. Failing to get possession they brought the present suit. The case of the contesting defendants l to 6 and defendant 12 is that after the partition the plaintiffs were no longer cosharer landlords, that Gayanath has surrendered his interest in the suit lands, that is to say, those portions of the holding allotted to the defendants and therefore the decree in rent suit was not a rent decree and the interest of the defendants in the suit lands did not pass in sale and execution thereof.

2. The trial Court held that in fact there had been no surrender by Gayanath, that in any case there could not be a valid surrender at all of the suit lands as they were mere part of Gayanath's holding unless there had been consent of all the landlords including the plaintiffs. There is no evidence to show that the holding itself had been split up. The defendants had also taken the point that as the landlord's fee as required u/s 26(E), Ben. Ten. Act, had not been deposited by the plaintiffs before confirmation of sale and therefore, the sale was void. The trial Court did not accept the contention. The lower appellate Court has held that there was a surrender, that "the surrender was quite valid inasmuch as this was done after the separation of this land by partition." The Court had further held that the sale was in any case void for want of compliance with the requirements of section 26 (e), Ben. Ten. Act.

3. The learned advocate for the appellants contends that there is no evidence that the holding itself was split up or that the rent was apportioned or that the provisions of section 88, Ben. Ten. Act, were complied with and therefore, although there has been a partition among the superior landlords the actual land of their holding is a joint one, their shares being represented by the actual lands as partitioned. The learned advocate for the respondents has endeavoured to support by reference to the plaint that there was an admission by the plaintiffs that the holding itself had been split up and the rent had been apportioned. I am unable to accept this contention and on this point, I, therefore, agree with the view of the trial Court to the effect that the holding being still intact there could not be any surrender of a portion of it to some only of the cosharer landlords. Hence assuming that the finding of the lower appellate Court is correct, namely that Gayanath actually gave up possession of the lands in shares of the defendant, that could not have the effect of a valid surrender under the Act, such as t