Kali Kisore Chowdhury vs Gopi Mohan Roy Chowdhury and others

The Plaintiffs in this case are two-third shareholders of a certain talook. They say that there was within this talook a piece of raiyati land held by Dina Nath Singh, Kali Charan Singh, and Ram Chandra Singh, of whom Dina Nath was the recorded tenant, that Defendants 8 and 9 purchased the share of Dina Nath and Kali Charan, respectively, by two separate kobalas, and that Defendants 1 to 7 purchased the share of Ram Chandra, that the raiyati holding was not transferable and that the Plaintiffs never consented to the transfer of it. They therefore say that the Defendants are trespassers on the land and they sue for ejectment. This suit was contested by the Defendants 2 and 8, who put in separate written statements. Amongst other matters they denied that the land formed part of the Plaintiffs'' talook, and Defendant No. 8 further denied that he purchased any part of Dina Nath''s share.

The first Court dismissed the suit, holding that the Plaintiffs had not proved that this land was part of their talook or that the original tenants paid rent in respect of it. The Plaintiffs appealed against that decree, and the Subordinate Judge has reversed it declaring the Plaintiff''s right to a two third share of the rent of the entire land from all the Defendants. He found that Dina Nath had not sold his share, and that there having been no abandonment of the holding by the registered tenant, the Plaintiffs are not entitled to treat the Defendants as trespassers or to get khas possession of the land.

Against this decree the Defendant No. 8 alone appeals and the first ground which he takes is that the suit ought to have been entirely dismissed when it is found that the Defendants were not trespassers on the land. It may be gathered from the judgment of the Subordinate Judge that but for one piece of evidence he would have concurred in the decision of the Munsif and dismissed the Plaintiffs'' suit. The evidence upon which he relied was a kobala executed by Ram Chandra in favour of Defendants 2 and 7, and containing in the recital a statement that the land was part of a talook which belonged to one Krishna Mohun Chowdhury, who is father of one of the pro forma Defendants, and therefore a co sharer of the Plaintiffs.

It is contended before us that this document is not evidence against Defend ant 8, and cannot be received as against him as any proof of the Plaintiffs'' title, and in our opinion, this contention must prevail. The Appellant does not derive his title from Ram Chandra and is not affected by any admission made by the latter. It is said, however, that the recitals in the document are admissible, because Ram Chandra was one of the co-sharers of the raiyati holding and any admission which he made in respect of the holding, would be evidence against the co-sharers or persons who claim under them. Whatever may be the case as between partners who are regarded as agents for each other in the partnership business, it cannot be said that Ram Chandra, in selling his share of the land or in any statement which he made in connection with the sale of it, was in any way acting as the agent of his co-sharers, and we do not see under what section of the Evidence Act the alleged admission contained in the recitals can be used against the Appellant. Apart from that, the Defendant No. 2, in whose favour this kobala was executed, denied that it had ever been acted upon and the Subordinate Judge has thrown upon the Defendants the onus of proving that. That was wrong, as it was clearly for the Plaintiffs, if they wished to rely upon the admission, to prove that it was contained in a document to which some effect had been given. Under any circumstances, therefore, it would have been necessary to remand the case for further enquiry on that point. But in the view we take of it, we think that a remand is unnecessary. The only question that remains is as to the form of the decree which we should make. As already stated, the suit was one to eject the Defendants as trespassers. It is found that they are not trespassers, and on that ground alone, the suit should properly have been dismissed. The Subordinate Judge, however, went on to try the question of the Plaintiffs'' title to receive the rent. It cannot be denied that it was competent to him, if he found that title established to give the Plaintiffs a decree for some lesser relief than they had claimed in the plaint. But the Subordinate Judge in dealing with the case, as he has dealt with it, has altogether changed the nature of the suit. If the Plaintiffs wished to get a declaration of their title and a declaration of their right to receive rent from the persons who were alleged to be tenants of this laud, all those persons ought to have been made parties. The suit was properly framed as a suit for ejectment on the ground on which it was based, but it was not properly framed as a suit for declaration of the Plaintiffs'' title to receive rent from the persons who are in possession of the Ian J, and without making Dina Nath or his representatives, parties, we fail to see how the Subordinate Judge could properly make the decree which he has made. That is a decree declaring the Plaintiffs'' right to receive a two-third share of the rent of the land from Defendants 1 to 8 inclusive of the share of Dina Nath whose interest is found not to have been transferred and who is not party to the suit. The decree as made cannot stand, and we think the only decree which it is possible to make on the suit as framed is one of dismissal on the ground that the Defendants are not found to be trespassers upon this land, and as such, liable to eviction at the suit of the Plaintiffs. We do not decide any question of the Plaintiffs'' title to the land or any question of their right to receive rent from Dina Nath or from any of the Defendants in the suit. We dismiss it on the bare ground that the Defendants ore not found to be trespassers on the allegations made in the plaint, and that on the suit as framed the Plaintiffs are not entitled to get any other relief than the particular relief which they asked for. We set aside the decree of the Subordinate Judge and direct that the suit be dismissed with costs in all the Courts.