RAJA SIMHADRI APPA RAO Vs. PRATTIPATI RAMAYYA

JUDGEMENT

(1.) The defendants Nos. 1 and 2 were let into possession of 23 acres of land in the plaintiff's zemindari as tenants from year to year. Subsequent to the creation of this tenancy the third defendant set up a claim to the whole land under a previous transaction between the plaintiff and that defendant's father. In a suit which ensued in consequence, there was a compromise decree, according to which, the third defendant was declared entitled to the possession and enjoyment of 9 acres 16 cents and the plaintiff to the remainder, fending the litigation, and before the compromise, notice to quit was given in respect of the whole of the lands by the plaintiff to the defendants Nos. 1 and 2. With reference to these allegations, the plaintiff prays for a decree ejecting defendants Nos. 1 and 2 from his share of the lands, viz., 13 acres 81 cents excluding 9 acres Id cents due to the third defendant, and his transferee the fourth defendant, by actually Separating the same in this suit in case it is not done earlier in execution of the razinama decree.

(2.) The lower Courts directed a partition by metes and bounds of the land between defendants Nos. 3 and 4 on the one hand and the plaintiff on the other, and dismissed the claim against defendants Nos. 1 and 2 on the ground that it involved a misjoinder of causes of action. The question is whether this dismissal is right. The case of Saminada Pillai V/s. Subba Reddiar I.L.R. 1 Mad. 393 on which much reliance was placed on behalf of defendants Nos. 1 and 2 is dearly distinguishable. There, certain members of a Joint Hindu Family sued their co- parceners for a partition and combined with it a further claim to eject tenants who held the land under the family. There was thus ft joinder of two causes of action, in each of which fill the defendants were not interested. Such, however, is not the case here. There being already an executable decree for partition between the plaintiff and the third defendant, actual division as between them is a matter for execution of the decree, and no longer a cause of action for a suit, The present suit cannot, therefore, be rightly viewed as combining one cause of action against defendants Nos. 3 and 4 in which defendants Nos. 1 and 2 have no interest with another to eject the latter in which defendants Nos. 3 and 4 are likewise uninterested. As admittedly, an actual division of the share of the third defendant in execution and delivery of it to him have not been effected, and as such division is essential to the ejectment of defendants Nos. 1 and 2 which is the relief to which the plaintiff is entitled, assuming his case to be otherwise well funded, it fellows that the inclusion of the third and fourth defendants in this suit is merely as that of persons properly parties to the proceeding in the circumstances of the case, and not as litigants against whom a separate claim having no necessary connection with the ejectment of defendants Nos. 1 and 2 is made. The error of the lower Courts was in failing to perceive that the actual division was merely ancillary to the relief to be given to the plaintiff in respect of the only cause of action involved in the suit, and in treating it as if it were a relief to be granted in a perfectly independent claim for partition as between the plaintiff and defendants Nos. 3 and 4.

(3.) In the view I take of the case, the dismissal complained of, must be held to be wrong, inasmuch as the plaintiff will be entitled to eject defendants Nos. 1 and 2 from his portion of the lands on his showing that the tenancy as between him and those defendants has been duly determined, or, the effect of the compromise decree was to make the plaintiff and third defendant tenants-in-common so long as the 23 acres of land remained undivided; and it is settled, that a tenant-in-common may have ejectment to the extent of his interest on proper notice to quite.