JUDGMENT

Grimwood Mears, C.J. and Piggott, J. - One Ram Naresh was the occupancy tenant of a certain holding. He mortgaged the same with possession to one Dukhit Misir, at a time when such mortgages were not forbidden by law. Dukhit accordingly entered into possession of the holding lawfully with the status of a mortgagee. Earn Naresh died in the year 1913. Dukhit remained for a time in possession as a ,tenant-at-will. His rights as mortgagee had been determined because Ram Naresh had left no heir entitled to succeed to, the tenancy. Dukhit has let into possession Har Prasad Rai and others, who are co-sharers in the village, and we may take it as-found that he has let them into possession in return for a money payment made in recognition of his rights as mortgagee. The plaintiffs, came into court alleging that they were the sole proprietors of the land which formed the occupancy holding of Ram Naresh. They claimed that Dukhit was their tenant-at-will, and that they were entitled to eject him under the ordinary procedure prescribed by the Local Tenancy Act, No. II of 1901. Along with Dukhit they claimed to eject Har Prasad Rai and others who have been described as persons let into possession by Dukhit. In reply to the suit Dukhit said that he was no longer in possession, and had no longer any concern with the-land, that he had been paid off by Har Prasad Rai and others and that the plaintiffs might settle accounts with them. Har Prasad and others pleaded that they were not merely co-sharers in the village, but co-sharers along with the plaintiffs, in the proprietary rights over the particular land in suit. They claimed, therefore, that having induced Dukhit, no matter by what means, to surrender the land into their possession and occupation, they became entitled to hold the same as their khudkasht. In any event they contended that the plaintiffs had no right to sue them for an ejectment in a rent court. The-Assistant Collector who tried the case seems to have gone very-carefully into the evidence and to have framed proper issues. There has been some controversy before us whether, on the-, pleadings of the two parties, Section 199 of the Tenancy Act' did or did not apply; if it did apply, then the question of proprietary title was tried by the Assistant Collector, and there has ' been no contravention of the provision's of that section. The conclusion arrived at by the Assistant Collector was that,, although according to the village records both the plaintiffs and the contesting defendants, Har Prasad Rai and others, held proprietary rights in respect of the land in suit, nevertheless there had been a private partition amongst the co-sharers, not carried out through the agency of a Revenue Court, and not recognized in the revenue papers, according to which private partition the plots of land in suit constituting the occupancy holding of Ram Naresh had been assigned wholly to the plaintiffs. On this finding, principally, the Assistant Collector decreed the suit for ejectment. There was an appeal by Har Prasad Rai and his co-defendants to the court of the District Judge. The District Judge, affirming the findings of the Assistant Collector, dismissed the appeal. On a second appeal being brought to this Court, a learned Judge of this Court has reversed the findings of both the courts below, and has dismissed the suit. We are not quite clear as to the attitude of the learned Judge of this Court with regard to the finding of the lower appellate court on the question of the separate title of the plaintiffs. He treats that finding as amounting to no more than this, that there had been an arrangement for convenience of collection amongst the various co-sharers of the mahal, by which the right to collect rent from Ram Naresh had been assigned to the plaintiffs alone. He clearly intends to hold that such an arrangement would not amount to a partition of the land amongst the various co-sharers, or to a surrender on the part of Har Prasad an