YESHWANT BALKRISHNA LAGU Vs. KESHAV ANANT PANDIT

JUDGEMENT

(1.) THE appellant in this Letters Patent Appeal was the plaintiff in the original suit. He is an inamdar of the village of Kudave. It appears that there are some co-sharers in the inam. He brought a suit for a declaration that he is the owner of certain land, and to recover possession of the land in case it should be found that it is in the possession of the defendants. THE land in suit consists of three plots which have been described as plots W, X and Y. We are no longer concerned with plot W as the plaintiff's claim to that was disallowed and he did not take cross-objections in the appeal before Mr. Justice Macklin. As regards the other two plots X and Y, it has been held that they were leased to the defendants by the plaintiff in 1898 and the following years, that there was a lease in 1909 for five years and that after 1914 the defendants ceased to be tenants. THEy claimed to have acquired ownership by adverse possession, but the lower Courts have held adverse possession not proved. In fact they have found that the plaintiff was himself in possession of these plots X and Y at the date of the suit, so that no order for possession had to be made. THE decree made was that the defendants are restrained from making obstruction to the plaintiff in his possession of these plots.

(2.) THE decree of the trial Court having been confirmed on appeal by the Assistant Judge, there was a second appeal which was heard by Mr. Justice Macklin. He allowed an objection which had been taken in the Courts below but disallowed there, namely, that the plaintiff's suit was not maintainable without joining his co-sharers in the inam as parties. Reliance was placed on Vagha v. Manilal (1934) 37 Bom. L. R. 249, Balkrishna v. Moro (1896) I. L. R. 21 Bom. 154, and other cases cited in those decisions in which it has been held that where the landlord's rights belong jointly to several persons, a suit to eject a tenant can be instituted only by all the co-owners suing jointly as plaintiffs. But the rule relied on by Mr. Justice Macklin only applies where there is a subsisting relationship of landlord and tenant. THE cases were discussed in Maganlal Dulabhdas v. Budhar Purshottam (1926) I. L. R. 51 Bom. 149 : S. C. 29 Bom. L. R. 222, and it was held that where a tenancy is entered into for a fixed term with co-owners of property, and the tenant continues on sufferance after the expiration of the period of the tenancy, a suit brought to eject the tenant by one only of the co-owners is maintainable. Mr. Justice Shah, who delivered the judgment in this case, pointed out that the position of a tenant on sufferance is akin to that of a trespasser, and a co-owner can maintain an action to eject a trespasser who has been holding over wrongfully as decided in Shutari v. THE Magnesite Syndicate, Ltd (1915) I. L. R 39 Mad. 501.

(3.) WE must allow the appeal and set aside the decree of Mr. Justice Macklin.