JUDGMENT

1. The Plaintiff and the Defendant's 2nd and 3rd parties are the proprietors of Mouzah Raghunathpur Khargi, the Plaintiff having an undivided one-fourth share, and the Defendants 2nd and 3rd parties having a one-fourth and a half share respectively. The Defendants 1st party are the proprietors of the Daudpur indigo concern and they held 76 bighas, 2 cottahs and 19 dhurs of land within the village as lessees under the proprietors under seperate leases. They are still holding the three-fourths share of the Defendants 2nd and 3rd parties under separate leases from them, but their lease from the Plaintiff for her one-fourth share expired at the end of the Fusli year 1307, and under the conditions of the lease which is dated the 21st April 1890, the Plaintiff was entitled to khas possession of her share. After the expiry of the lease, the. Defendants 1st party did not give up possession, but the Plaintiff did not consent to their action and did not accept rent. Thus they were trespassers from the beginning of the year 1307 except as to lands actually under indigo cultivation as to which there was an express condition not now necessary to refer. to. The Plaintiff has asked in the suit for a decree for a partitioned one-fourth share or joint possession in the. alternative of the lands in the occupation of these Defendants and also for mesne profits for the period of trespass. The Plaintiff has stated in her plaint that the lands leased to these Defendants are zerait but it is clear from the facts alleged and proved that the lands are not the private lands of the proprietors as contemplated by the Bengal Tenancy Act: they are portions of the raiyati lands of the village which came somehow or other into the khas possession of either the proprietors or their lessees, the Defendants first party.

2. These Defendants claim a kasht or occupancy right in the lands but their plea that the lands were in the occupation of raiyats who had jote rights and that they had obtained khas possession with the consent of these raiyats for the purpose of indigo cultivation is inconsistent with their kasht right. They obtained khas possession as lessees on account of relinquishment by the raiyats and they cannot claim a right of occupancy by mere possession and cultivation when they paid no rent specially for such lands and they were in fact landlords in occupation. If the rights the raiyats had were transferable by custom or legal usage (and there is no plea or proof to that effect), and if these Defendants had acquired by purchase such rights, they might have pleaded in defence to any suit in ejectment without notice to quit either occupancy rights or such anomalous rights as are contemplated in Jawadul Huq v. Ram Das Saha I. L. R. 24 Cal. 143 (1896), referred to by the learned District Judge. But on the facts alleged and found by the learned Judge, sec. 22 of the Bengal Tenancy Act has no application, and the acquisition of khas possession of lands covered by the lease enured to the benefit of the lessor as soon as the lease expired and the lessor was entitled to re-enter. Thus these Defendants have no right to resist the Plaintiff's claim to possession on the ground of their alleged occupancy right.

3. What then is the shape of the relief the Plaintiff is entitled to ? She has claimed possession of her share of the lands by partition and we think she is entitled to it. The Subordinate Judge held she was entitled to a decree for partition and directed a commission to issue for the purpose of dividing the lands by metes and bounds. We see no bar to such a decree being passed, notwithstanding that the lands are not the private lands of the proprietors and they are only portions of the raiyati lands of the village. All the co-proprietors are parties to the suit and the proprietor Defendants do not object to a partition. The lessee Defendants have under their leases the present right to possession of the lands though such right is temporary in charact