PRAYAG SONAR Vs. MOTAR SINGH

JUDGEMENT

(1.) THIS is an appeal by the two defendants against whom the Courts below have given the plaintiff, Motar Singh, a decree for possession of a certain house by ejectment of the defendants. The parties were at issue in the Courts below upon a number of questions of fact and it is important to note precisely what the findings of the lower Appellate Court have been on those questions. Those findings I take to be as follows : that the house in suit belonged to one Saheb Dutt Singh, who died about 20 years before the institution of the suit leaving him surviving a widow, Musammat Jiachha, who entered into possession of this house along with other party of her late husband having a limited interest therein as a Hindu widow. Musammat Jiaehha let this house to the defendants-appellants, not for any specified cash rent, but upon the understanding that the defendants were to maintain her while they occupied the house. The lady died about ten years before the institution of the suit, and the reversionary heirs of her husband were then two persons, the plaintiff, Motar Singh, and one Achahal Singh, who was impleaded in this suit as defendant No. 3. The defendants have denied the title both of Motar Singh and ot Achahal Singh and have set up a title in themselves. On these findings of fact it is clear that there is no force in any of the pleas in the memorandum of appeal to this Court which assail the decision of the lower Appellate Court in respect of any of the grounds on which that decision actually proceeds. There are, however, certain pleas taken in the memorandum of appeal to this Court which were not taken before the lower Appellate Court, as to which it is necessary that I should come to some decision. On the finding of the Court below that the defendants entered into possession as lessees under a contract of lease with Musammat Jiachha Kuar, it is necessary in order to the forfeiture of the lease that the lessor should do some act showing his intention to determine the lease. The act in question must be an act done before the suit for ejectment is instituted, as otherwise the suit would be brought when there was no valid cause of action for the same. THIS has been laid down by this Court in Frag Narain v. Kadir Baksh 18 Ind. Cas. 728 : 11 A.L.J. 115 : 35 A. 145. It is now contended before me that the decree of the lower Appellate Court is unsustainable in the absence of any finding that the defendants had received previous notice of the plaintiffs desire and intention to eject them.. In paragraph 6 of the plaint the plaintiff alleges that some seven months prior to the institution of the suit he had called upon the defendants to vacate the house and had been met with a refusal. THIS was a plea that as a matter of fact the necessary condition required by Section 111 of the Transfer of Property Act to complete the forfeiture of the lease had been complied with. The Court of first instance framed an issue on the point, but recorded no finding of fact, having come to the conclusion (in my opinion erroneously) that the plaintiff was not bound to prove that he had given the defendants any sort of notice to vacate the house before he instituted the suit. THIS finding was not contested by the defendants in their appeal to the Court of the District Judge. Under the circumstances it would not be possible for me to allow the plea to be taken now without going into the question of fact with regard to the allegation made in the fifth paragraph of the plaint. , I am, therefore, of opinion that, if this plea stood alone, I ought not to allow it to be raised or to prevail in second appeal.

(2.) THERE is, however, another point now taken before me winch was never taken at all in the Courts below. It is apparent on the very face of the plaint that the plaintiff did not claim to be the owner of the entire house in suit. He distinctly pleads that the property in this house has devolved upon himself and Achahal Singh in equal shares. He is, therefore, the owner of an undivided half share in the house in dispute. If this were an ordinary action in ejectment against a trespasser the principle would no doubt apply that one of several joint owners can sue to eject a trespasser on behalf of himself and of the other owners. In the present case however it was alleged in the fourth paragraph of the plaint, and has been found to be proved, that the possession of the defendants commenced with a contract of lease. They were, therefore, in possession as lessees until the lease was forfeited. It is now contended before me that, on the allegations of fact made in the plaint itself : and found by the lower Appellate Court to have been proved, the decree of the Court below in favour of : the plaintiff is not maintainable. In the first place, there is the question whether one of two lessors can determine the lease within the meaning of Section 111, Clause (g) of the Transfer of Property Act. THERE is also the further question whether the plaintiff, as owner of an undivided half share in the house in suit, could in any case be given a decree for possession in respect of the entire house. Moreover, as the plaintiff is the owner of an undivided half share, if he cannot eject the defendants from the whole house, it is clear that he cannot eject them from any specified portion of the same. It is most unfortunate that these pleadings were not laid before the Courts below : but they raise a pure question of law and one which goes to the root of the plaintiff s case. In an unreported case of this Court in Ghurai Misir v. Mathra Prasad Sec. Appl. No. 418 of 1900, decided on 25th July 1901. a similar plea was allowed to be taken, and was given effect to in second appeal, under circumstances closely analogous to the facts of the present case. I propose to follow that authority and to give effect to it, in so far as it is applicable to the precise circumstances of the case before me. I do not think that the plaintiff s suit should be dismissed altogether, because to do so would be virtually to affirm the title of the defendants appellants after the question of title had been expressly decided against them in the lower Appellate Court. At the same time I have already pointed out that the plaintiff cannot eject the defendants from any specified portion of the house. I accordingly set aside the decrees of both the Courts below and in lieu thereof, I give the plaintiff a decree for joint proprietary possession over the house in suit to the extent of an undivided half share coupled with a declaration that the defendants are in possession as tenants. The decree for possession will be capable of execution in accordance with the provisions of Order XXI, Rule 35, Clause 2, and Rule 36. The parties will bear their own costs in all three Courts.