JUDGMENT

Gokaran Nath Misra, J - This is a second appeal arising out of a suit for partition of a certain cultivator holding in village Jaitapur, district Gonda. The plaintiff and Defendants Nos. 1 and 2 are co-sharers in the said holding, each owning cine-third. Both the Courts below have granted to the plaintiff a decree for partition in respect of one-third share in it-he said land.

2. The only point that has been argued before me is a point of law that a cultivator holding could not be partitioned without the consent of the landlord, which has not been obtained in this case. I was referred to Clause (2) of Section 39 of the Land Revenue Act (3 of 1901) which runs as follows:

No division of a holding occupied by two or more tenants, and no distribution of the rent payable in respect thereof, shall be recorded, unless the consent of the landholder and of all the tenants concerned has been attested before so revenue Court or the qanugo.

3. The argument put forward is precisely the same which was put forward before the learned District Judge, and I fully agree with the view taken by him. Section 39, Clause (2), does not mean that, no division of the holding held by two or more tenants should be effected. It only says that if such a partition has been arrived at and the distribution of land has taken place it shall not be recorded in the revenue papers until the consent of the landholder has been obtained it is clear that this provision of law is intended for the purpose of protecting the rights of the landlord. Any partition of a cultivator holding should not obviously be binding upon the landlord if effected without his consent. The liability for the payment of rent among the tenants cultivating a particular holding is a joint one and they are not entitled to convert their joint liability into a separate liability without the consent of the landlord. This, however, does not mean that the tenants cannot partition their holding among themselves. As an illustration, a similar case of a partition among the co-sharers of a village, possessing proprietary rights styled as an "imperfect partition" might be quoted. The co-sharers in such a case partition their joint proprietary holding and. distribute the land revenue among themselves, though their liability for the Government revenue still continues to be a joint one. I, therefore,; am of opinion that Section 39, Clause (2), cannot be construed as a bar to the claim of' the plaintiff-respondent to get his share in the cultivator holding divided by means of a partition suit filed in a civil Court. It is, however, clear that no such partition could be recorded in the revenue' papers until the landlord; had given his consent to it.

4. The appeal fails and is therefore dismissed with costs.