PANCHU ROUT Vs. LALMOHAN PRADHAN AND ANR.

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment in Title Suit No. 237 of 1945 on the file of the Munsif, Balasore. The Plaintiff Respondent sued for a declaration that there is no relationship of landlord and tenant between him and Defendant 1, who is the Appellant before me, in respect of plot No. 120 measuring '91 of an acre. The admitted facts are that the Plaintiff the second Defendant, and another person, were co -sharer -land lords and that at the partition of the touzi to which these plots appertained, the suit plot fell to the share of the Plaintiff. Defendant No. 1 was a tenant under the second Defendant who was one of the co -sharer -landlords. The Defendant's case was that he acquired the status of a Stitiban royat as he was inducted into the land by Defendant 2 and as his name was recorded in the partition papers as tenant in respect of the disputed plot. The primary court decreed the Plaintiff's suit in part. The learned Munsif held that there was no relationship of landlord and tenant between Plaintiff and Defendant 1 but that Plaintiff would be entitled to joint possession with Defendant 2 in respect of his 0 -6 -0 share, and that he was bound to recognize Defendant 1 as a tenant in respect of the balance share of 0 -9 -0 on a proportionate reduction of rent. On appeal the learned Subordinate Judge held that Defendant 1 had failed to make but either the lease or alleged possession under the lease. He therefore, held that Defendant 1 was not a tenant and gave a decree to the Plaintiffs in terms of the plaint.

(2.) IN second appeal, Mr. Chatterji, learned Counsel for the first Defendant Appellant argues that inasmuch as the Appellant was recorded as a tenant in the partition papers, in respect of the disputed plot, the Plaintiff is bound to recognise him as a tenant. The law is clear on the point that when one of the co -sharer -landlord in exclusive possession of a plot lets it out to a tenant without the consent of the other 00 sharer -landlords" the tenancy will not bind the non -consenting co -sharers in the case before me it was neither alleged or ever proved that the Plaintiff gave his consent to the tenancy created in favour of Defendant 1. Admitting therefore that the Defendant's case of tenancy is true, the Plaintiff would still be entitled to a decree inasmuch as he has never recognised the tenancy of the first Defendant.