Lachmi Lal and Others vs Ganesh Chamar

Kulwant Sahay, J.—The plaintiffs appellants and their cosharer one Jugdeo Lal held certain tenancies in two villages Lokpur and Ekil. The defendants were under-raiyats under the plaintiffs and their cosharer in respect of these two holdings. The entire body of landlords including Jagdeo Lal gave notice to the defendants u/s 49, Ben Ten Act, requiring them to quit the lands on the expiration of the term of the notice. After the term of the notice had expired it appears that Jagdeo Lal received certain rents from the defendants. He received rent in respect of his 8 annas share of the holding in Mauza Lokpur and he received the entire rent in respect of the 16 annas share of the holding in Mauza Ekil.

On 16th September the present suit for ejectment of the defendants was instituted by the present appellants as well as by Jagdeo Lal as plaintiffs. The defence of the defendants was that they were not under raiyats but raiyats and that the status of the plaintiffs was that of tenure-holders. The Munsif decreed the suit on a finding that the defendants were under raiyats under the plaintiffs. There was an appeal by the defendants to the Subordinate Judge. During the pendency of the appeal Jagdeo Lal entered into a compromise with the defendants and accepted the rent. Upon this compromise the Subordinate Judge held that the suit was no longer maintainable inasmuch as the entire body of landlords were not seeking relief against the tenants and he accordingly dismissed the suit. On second appeal to this Court this judgment of the Subordinate Judge was set aside and the case remanded to him for a finding as regards the genuineness or otherwise of the receipts alleged to have been granted by Jagdeo Lal and for disposal of the suit according to law.

After remand the Subordinate Judge found that the receipts produced by the defendants in respect of the payment of rent to Jagdeo Lal were genuine and he gave a decree to the other plaintiffs, namely, the present appellants, for partial ejectment of the defendants in respect of their shares in the holding. The defendants preferred a second appeal to this Court which was heard by a single Judge and the learned Judge allowed the appeal on a finding that having regard to the fact that Jagdeo Lal had accepted rent before the institution of the suit therefore at the time of the institution of the suit there was no subsisting cause of action in favour of Jagdeo Lal one of the plaintiffs, and that therefore the suit of the other plaintiffs also could not be entertained. The second appeal was therefore allowed and the entire suit was dismissed.

The appellants have now come up in appeal under the Letters Patent and it is contended on their behalf that the fact of the receipt of rent by Jagdeo Lal after the expiry of the term of notice did not in any way entitle the defendants to hold on as tenants under the appellants. It is contended that after the expiration of the term of the notice the position of the defendants was that of trespassers and the receipt of rent by Jagdeo Lal did not restore the position which existed before the expiry of the term of the notice. At most it amounted to a fresh settlement by Jagdeo Lal himself and it had not the effect of creating tenancy as between all the landlords and the defendants. The fact that Jagdeo Lal accepted rent to my mind did not in any way affect the other landlords who did not join Jagdeo Lal in accepting the rent. After the determination of the tenancy on expiry of the term of the notice the position of the undertenants, namely, the defendants, became that of trespassers. The appellants as cosharer landlords could institute a suit for possession in respect of their share of the land either jointly with the tenants as representing Jagdeo Lal on separately. As there has been no separation of the land, the only claim that the appellants can make is to obtain possession in respect of their share jointly with the defendants as representing the interest of Jagdeo Lal.

It is contended that u/s 188, Ben Ten Act, the suit by some of the cosharers was not maintainable. In my opinion Section 188 has no application to a suit for ejectment inasmuch as such a suit is not a thing which the landlords are required or authorized to do under the Bengal Tenancy Act. All that the Bengal Tenancy Act requires is that u/s 49 all the landlords should join in determining the tenancy. After the tenancy is once determined the action which the landlords take in ejecting the defendants and bringing a suit for the purpose is not a thing which is required or authorized to be done by the Bengal Tenancy Act. The suit therefore by some of the landlords cannot fail on the ground that one of them had accepted the tenants as his tenants. In this view of the case it is clear that the decree made by the Subordinate Judge was correct. The decision of the single Judge of this Court must therefore be set aside and the decree of the Subordinate Judge restored. The appellants are entitled to their costs here and before the single Judge.

Courtney-Terrell, C.J.

I agree.