The main legal point established in the judgment is the interpretation of the provisions of the Tenancy Act, particularly regarding the occupancy of a holding and the impact of partition on the status of the holding.

Hallifax—One Mst. Suhawan was the occupancy tenant of a holding of 13.25 acres, which the plaintiff as landlord of the village claims as having lapsed to him on her death in November 1917. The defendants, who are in possession of the holding, are the son and grandson of the two other sons of Anant, father of Mst. Suhawan's husband Shionath. They were not co-sharers in the holding bat they all hold land and are permanently resident in the village in which it is situated.

2. Whether Anant, the ancestor in the male line common to them and to Shionath ever ''occupied the holding'' within the meaning of S. 46 of the Tenancy Act, is the matter to be decided in this case. Anant had an occupancy holding of 28 acres, but apparently only 6.6 acres of this passed to Shionath. The remaining 7.9 acres of the 13.25 held by Shionath are a subsequent accretion, and the plaintiff has contended throughout that Anant cannot be said to have occupied the present holding of 13.25 acres only because 6.6 acres of it formed part of the holding that he did occupy. In the first Court it was held that the defendants were entitled to retain possession of only the 6.6 acres which are proved to have been held by their ancestor Anant. The plaintiff appealed and the learned Additional District judge dismissed his appeal, remarking that, if the defendants had put in a memorandum of objections, they would, in his opinion, have succeeded in respect of the whole 13.25 acres. The plaintiff has appealed again.

3. The first ground of appeal seeks to attack the finding of fact that Anant was an occupancy tenant of 6.6. acres out of the 13.25 acres-held by Shionath. It is obviously untenable and has been expressly abandoned. On the question, whether the defendants satisfy the last of the conditions in the proviso to S. 46(1) of Act, XI of 1893, that is to say whether Anant ever ''occupied'' Shionath's holding of 18.25 acres, one and the same argument, which certainly cuts both ways, has been put forward by both sides. It is urged that the holding of 13.25 acres is one and indivisible.

4. The two parties of course deduce different results from this indivisibility, each urging that he should get the undivided whole. The respondents who failed to appeal against the decree of the first Court can of course only say that their real right to the whole makes their title to the part they have got secure.

5. It is certain that the 6.6 acres in Mst. Suhawan's holding were partitioned off from Anant's original holding after his death, whether that partition was before or after the death of Mst. Suhawan's husband and that the rest of the 13.25 acres is land subsequently acquired by her or by her husband. And after the partition it is beyond doubt that the 6.6 acres were held by a new tenant under a new lease and a fresh set of conditions. Speaking of the surrender of a defined portion of his holding by a tenant. Batten, A.J.C., said in Sunder v. Sitaram,1911 7 NLR 8. It appears to me that such an arrangement made by mutual agreement between the parties is not to be distinguished from a surrender of the entire holding with a fresh lease of some of the fields comprised in it.

6. Similarly I cannot see how a partition of a holding with the landlord's consent between co-tenants can be distinguished from a surrender of the whole by all of them jointly and a grant of a new lease in respect of the parts to each of them separately. Each part then is a parcel of land held on a lease, which is not the same as that on which the original whole was held, and, therefore, with reference to the definition of a holding in S. 2(3) of the Tenancy Act, it cannot be the same holding. In Tikaram v. Seth Ghasiram,1914 10 NLR 129, Mitra, A.J.C., said: I am of opinion that, when the landlord agreed to distribute the rent on each parcel separately, the parent holding was split up into two holdings.

7. And again : ''If a partition, made by two persons interested in two portions of the holding, is accepted