THAKUR RAM Vs. SHAKROO MIAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for ejectment of defendants Nos. 1 and 2 from a small piece of land which upon the findings was settled with them before 1900 by one Gobinda Prosad, a large co-sharer in the mauzah, for Stacking wood and coal. It is said that this settlement was with the consent of the other maliks. Defendants Nos. 7 to 9 who are maliks of 6 annas admit this settlement and do not want an ejectment. The learned Judge has held that the said settlement could not have been made except by a registered pattah and as there is none, the defendants Nos. 1 and 2 have no title and are trespassers: he also finds that as Gobinda Prosad was one member of a joint family and not the managing member, he could not make the settlement or at least could make a settlement with regard to his own share and as that share, has survived to his co-sharers, the defendants Nos. 1 and 2 claiming under settlement made by Gobinda Prosad have no title and are trespassers. I think the learned Subordinate Judge has committed an error of law in coming to this conclusion. If Gobinda Prosad made the settlement with the consent of the other maliks, some of whom still support the settlement and all of whom at least acquiesced in the settlement, the defendants came, upon the land as tenants. The tenancy may not be a valid one for want of a registered pattah for more than a year but the defendants have been allowed to hold on and it is a tenancy by sufferance until terminated in due course of law. The learned Munsif found that it had been abundantly proved that Gobinda Prosad made the settlement with the consent of all the maliks and that finding has not been upset by the learned Subordinate Judge. On the other hand, he finds that the settlement by Gobinda Prosad is proved. So that in any view of the case, the defendants came upon the land under a valid title before 1900 and have continued in possession ever since. The plaintiffs, who are rival sugar manufacturers, came in as zari- peshgidars in respect of about 13 annas in 1904 and in January 1906 brought this suit for ejectment against the wishes of the rest of the maliks. As soon as it is found that the defendants came in as tenants and their tenancy has not been terminated in due course of law by all the maliks, I do not see how the plaintiffs can maintain a suit for ejectment against the wishes of their co-sharers. The case of Gopal Ram Mohuri V/s. Dhakeswar Pershad Narain Singh 35 C. 807 : 7 C.L.J. 483 is a sufficient authority for, this view. The learned Judges upon a review of all the important cases on the point say: "Where the relation of joint landlords continues, it would seem the tenancy of the lessees cannot be put an end to, except by all the lessors acting together. The learned Vakil has also argued that as Gobinda's daughters are living and claiming the property as his heirs, the suit cannot be maintained without their being joined as defendants, and that it carrot be maintained in the absence of defendants Nos. 3 to 6 who are lessees under defendants Nos. 7 to 9. It is, however, not necessary to go into these matters and the first point is sufficient to dispose of the case. In the result, therefore, the appeal is allowed and the suit of the plaintiffs dismissed with costs in all the Courts.