JUDGMENT
1. This is an appeal by the defendants against a decree of the lower appellate Court in favour of the plaintiffs. The plaintiffs are cosharers in a mahal along with the defendants and the plaintiffs sued for possession of certain specific plots and for damages for dispossession in regard to the year 1332 Fasli. The Court of first instance dismissed the suit for separate possession of the plaintiffs and damages and granted a decree merely for joint possession. The plaintiffs based their case on the following facts.
2. Newaz Chaube was a cosharer in this mahal and he mortgaged the zemindari to the plaintiffs. The plaintiffs brought a suit on this mortgage and got a foreclosure decree and purchased the share of Newaz Chaube. Newaz Chaube had certain sir lands in this mahal and he became the ex-proprietary tenant of the sir as the result of these proceedings. Newaz Chaube paid his rent to the plaintiffs alone since the year 1883. A dispute arose between the plaintiffs and the defendants in regard, to this holding of Newaz Chaube and there were proceedings in Court under Section 145, Criminal P.C. and the criminal Court found on 21st October 1924 that the defendants were in possession and maintained their possession. In December 1S25 Newaz Chaube died. On 18th January 1924 Newaz Chaube executed a document of relinquishment in favour of the plaintiffs. The plaintiffs, therefore, claim to be entitled to the plots which were the exproprietary holding of Newaz Chaube both on the ground that Newaz Chaube executed the relinquishment is favour of the plaintiffs and also that Newaz Chaube was specially their tenant and on his death the plaintiffs are entitled to possession of the lands. The defendants on the other hand maintain that the exproprietary tenancy of Newaz Chaube arose in favour of all the cosharers in the mahal and accordingly Newaz Chaube was not entitled to relinquish his exproprietary holding in favour of the plaintiffs alone; and on the death of Newaz Chaube the plaintiffs alone would not be entitled to possession of this exproprietary holding.
3. It has been laid down in Muhammad, Ibrahim v. Ram Krisha Rai [1912] 10 A.L.J. 95 and Debi Prasad v. Bhagwan Din [1912] 35 All. 27 that on a sale of a share in a mahal the vendor becomes the exproprietary tenant of all the cosharers in sir plots and not merely the exproprietary tenant of the vendee. The latter ruling is a Full Bench ruling. The argument for the plaintiffs is that the present case is different from the case in the Full Bench ruling, because Nawaz Chaube was for a great number of years treated as a sole tenant of the plaintiffs-, and in fact plaintiffs alone had sued Newaz Chaube for, enhancement of rent. No evidence, how ever, has been placed on the record in regard to the wajib-ul-arz, or any special custom in this village, under which a tenant may be the tenant of only one cosharer. Another fact on which the plaintiffs rely as differentiating this case from the cases and the rulings cited for the defendants, is that in the mahal in question there is no tenancy land but only sir land and certain uncultivated land and groves etc. The exproprietary tenancy of Newaz Chaube was the only cultivated land in this mahal which was not sir. It is contended, therefore, that in equity the plaintiffs had a right to treat this exproprietary tenancy a specially appertaining to the one quarter share in this mahal which the plaintiffs-acquired. Reliance is placed on certain statements in the Full Bench ruling: Debi Prasad v. Bhagwan Din [1912] 35 All. 27 at 439 (of 10 A.L.J.) One of the statements is In our opinion this view of the circumstances of this case is correct
4. and the other statement is:
It is to be noted that this is not a case where the vendor is really the sole owner of the proprietary title in the lands which he holds as sir.
5. In our view the meaning of the latter sentence is that the ruling would not apply to a sale by a vendor who owned, the whole of a mahal. Reliance is also placed for the plaintiffs on a ruling in Bhagwant v. Arjun [1916] 14 A.L.J. 209. This was a suit "for profits in which it was held that the plaintiffs' claim that the defendants had: collected more profits in their share was not well sustained, because the plaintiffs themselves should have got exproprietary rent assessed on certain plots of khudkasht of over twelve years' tenure which they allowed to remain in possession of their vendor without any assessment of rent. It is quite true that under Section 36, Act 3 of 1901, it was the duty of the plaintiffs as the persons obtaining, mutation under Section 35 of that Act to apply to the Collector for assessment of ex-proprietary rent. It was not the duty of the other cosharers in the mahal to take this action. That was a sufficient reason to hold that the plaintiffs had been negligent in not obtaining assessment of that exproprietary rent. We also note that at p. 211 of that ruling the following words occur:
In our opinion it is clearly proved (if not admitted) that at the time of the sale to the plaintiffs an arrangement existed by which the different cosharers were entitled to possession of specific plots as representing their shares.
6. No such arrangement is admitted or proved in the present case, and as we have already mentioned the wajib-ul-arz has not been produced. We accordingly consider that the references to Debi Prasad v. Bhagwan Din [1912] 35 All. 27 contained in Bhagwant v. Arjun [1916] 14 A.L.J. 209 at p. 211 do not detract from the value of the Full Bench ruling as a guide in the present case.
7. We consider that the present case comes within the general rule that a vendor becomes the exproprietary tenant of all the cosharers in a mahal in the plots in which he owns sir for sale. If the contention of plaintiffs were allowed and it were held that the vendee became his special tenant with the power to relinquish in favour of the plaintiffs alone, the result would follow that on a sale of a share in a mahal it would be possible for the vendor to transfer the possession of sir plots to his vendee. That would defeat the provisions of the Tenancy Act Section 10 which lays down that it is not open to a vendor to transfer sir.
8. The plaintiffs claim that the result of dismissing his case for separate possession is to leave the other cosharers not only in possession of sir proportionate to their share but also in possession of this particular holding as khudkasht and to leave plaintiffs actually in possession of no plots in this mahal. It is a general rule that there is no wrong without a remedy. The plaintiffs, however, have adopted the wrong remedy. They have come to the civil Court with a suit for possession of these particular plots on the ground of this relinquishment. Another remedy is open to the plaintiffs. They may go to the revenue Court under Sections 106 and 107, Land Revenue Act, and ask for partition of a share in this mahal and on obtaining partition they will receive a number of plots for separate possession which will be proportionate to their share. It was argued on behalf of the plaintiffs that they were doubtful as to whether they had such a right, for partition, because in the present mahal there is no revenue assessed and also because their share does not amount to 100 acres. But although they, may not be entitled to perfect partition they are entitled to imperfect partition, and as there is no land revenue payable on the mahal, imperfect partition in the present case is just as good from their point of view as perfect partition.
9. Accordingly we allow this appeal, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs to the defendants in all Courts.