RAJ KUMAR MANDAL Vs. ALI MIA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the fetters Patent from the judgment of Mr. Justice Cuming in a suit for the recovery of possession of land upon declaration of title. The plaintiffs and the first two defendants are four brothers and are interested in the land in equal shares. According to the plaintiffs, the seventh defendant is their tenant and they have been evicted from the land by the first defendant who is a trespasser. The seventh defendant instituted a suit for rent against the under-tenants, with the result that the suit was dismissed, because the first defendant is in wrongful possession of the land. The seventh defendant thereupon stopped payment of rent to the plaintiffs. The plaintiffs were consequently constrained to institute this suit for declaration of title and recovery of possession by ejectment of the first defendant through the seventh defendant. The first defendant pleaded that he held as tenant under the plaintiffs by attornment in favour of their mother, which, according to him, created a tenancy operative against the plaintiffs. The Court of first instance came to the conclusion that this alleged tenancy of the first defendant under the plaintiffs was established and in this VJCW dismissed the suit. Upon appeal, the Subordinate Judge came to the conclusion that the alleged tenancy of the first defendant was not established, but that the land was held by the seventh defendant as tenant under the plaintiffs. The Subordinate Judge therefore, decreed the suit. His decree declared that the plaintiffs bad one-half share in the land and also directed that they do get possession through the seventh defendant by ejectment of the first defendant therefrom. On appeal to this Court, Mr. Justice Cuming has held that as there is an outstanding term in the seventh defendant, the plaintiffs are not entitled to a decree for ejectment. In this view, he has allowed the appeal is part and set aside that portion of the decree of the Subordinate Judge which entitled the plaintiffs to get possession of the disputed land through the seventh defendant on ejectment of the first defendant of the present appeal, the plaintiffs have contended that the decree made by the Subordinate Judge was correct on principle and should not have been set aside.

(2.) The principles applicable to cases of this character have been examined in a long series of decisions. In the case of Bissesuri Dabeea V/s. Baroda Kanta Roy Chowdhry 10 C. 1026 : 9 Ind. Jur 226 : 5 Ind. Dec. (N.S.) 719 Sir Richard Garth, C.J., stated that it is open to a landlord, where his title is in jeopardy from the aggression of a neighbouring Zemindar, and where his title may be damaged by a denial of his rights over the land, to bring a suit for the purpose of having his rights declared as against such wrong-doer and for the purpose of being put into possession of the land as against them. Sir Richard Garth, C.J., distinguishes the earlier decision in Womesh Chunder Gooto V/s. Raj Narain Roy 1 W.R. 15 which is in accord with the decision in Davis V/s. Kazee Abdool Hamed 8 W.R. 55 and confirms the principle that a landlord's cause of action to recover possession from a tenant or any one claiming under the tenant only accrues from the time when he determines the tenancy, and there can be no imitation of adverse possession as against a landlord so long as the tenancy continues. In the case before us as in the case before Sir Richard Garth, the plaintiffs have been seriously prejudiced by the intrusion of the respondent into his tenancy. His occupation has resulted in the ouster of the real tenant--the seventh defendant. The consequence has been that the seventh defendant has failed to collect rent from his under-tenants and has stopped payment of rent to the plaintiffs. In such circumstances, the principle enunciated by Sir Richard Garth becomes clearly applicable. This doctrine was recognised in the, cases of Kali Kishen Tagore V/s. Golam Ali 13 C. 3 : 6 Ind. Dec. (N.S.) 498 and Sarat Chandra V/s. Naritya Gopal 8 Ind. Cas. 47 : 13 C.L.J. 284. The same point arose for consideration before a Full Beech in the case of Sita Ram V/s. Ram Lal 18 A. 440 : A.W.N. (1896) 162 : 8 Ind. Dec. (N.S.) 999. Sir John Edge, C.J. elaborately discussed the principle. applicable to cases of this description and came to the conclusion that, "it was open to the landlord to institute a suit for recovery of possession from a trespasser through the intervention of his tenant. A landlord whose title is denied by his tenant has got a right to have the tenancy determined. A landlord whose title is questioned by any one else than the tenant has got a right to a declaration under Section 42 of the Specific Relief Act, and if any one enters on the receipt of the rents and profits of the land and takes from his tenants the rent which was due to him, he is entitled as against such person, not only to a declaratory decree declaring his title and that the other person has no title, but to a decree putting him to possession, that is what is known as formal possession as contradistinguished from actual or khas possession of the lands as against the person wrongfully taking the rents and profits to which he, the landlord, is entitled. It is an error to consider that any new system of procedure is required." The same view was recognised and applied in the cases of Somai Ammal V/s. Vellayya Sethurangam 26 Ind. Cas. 347 : 29 M.L.J. 233 : 16 M.L.T. 532 : 1.L.W. 1047 : (1915) M.W.N. 12. and Tiruvengada Konan V/s. Venkatachalla Konan 32 Ind. Cas. 198 : 39 M. 1042 : 30 M.L.J. 258. These cases distinguished the earlier decision in Ramanadan Chetty V/s. Pulikutti Servai 21 M. 288 : 8 M.L.J. 121 : 7 Ind. Dec. (N.S) 559. Reference has also been made to the decisions in Akhil Chandra Dey V/s. Akhil Chandra Biswas 10 Ind. Cas. 455 : 15 C.W.N. 715 and Jagannatha Charry V/s. Rama Rayer 28 M. 238 which confirmed the proposition that a landlord holds possession through tenant and can bring a suit under Section 9 of the Specific Relief Act to recover possession of property of which he has been dispossessed by act of a third party. We are consequently of opinion that it was open to the plaintiffs, in the events which have happened, to institute this suit to recover possession of the land by declaration of their title, such possession when recovered from the first defendant to be held by the plaintiff through the seventh defendant, the tenant who had been dispossessed by the trespasser. The decree of the Subordinate Judge consequently signifies that in execution of the decree, at the instance of the plaintiffs, the first defendant is to be evicted from the land and it is to be declared at the same time that upon such eviction the seventh defendant will be entitled to keep the land and continue to hold the land as tenant of the plaintiffs.

(3.) The result is that this appeal is allowed, the decree of Mr. Justice Cuming set aside and that of the Subordinate Judge restored with costs here and below.