TOTARAM KASAR Vs. KUTUBUDDIN

JUDGEMENT

(1.) 1. Respondent 1 Khwaja Kutub-ud-din, brought a suit against the appellant Totaram and respondent 2, Khwaja Hasan, for ejectment of Totaram from certain fields and for rent. The trial Court passed a decree for ejectment and for Rs. 106-14-0 as rent. On appeal however the Special Additional District Judge, Akola, modified the decree and granted the plaintiff a decree for joint possession on a half share in the fields only and for half the rent, that is, Rs. 53-7-0. Defendant 1, Totaram, has again appealed to this Court claiming that he was not liable to ejectment even as regards half of the fields It is now admitted that the plaintiff and defendant 2 are certificated holders of the jagir village of Hingna Kazi. It is also admitted that defendant 1, Totaram, is an annual tenant of the three fields, Nos. 8, 52 and 57, in that village and as an annual tenant he is liable to be ejected upon a notice being duly served Under Section 79, Clause (2), Berar Land Revenue Act, It is, however, contested that the plaintiff cannot eject him alone without the consent of other certificated holders and that a notice given by the plaintiff alone, was not a valid notice." The matter has been considered by the lower appellate Court and I think the view taken by that Court is correct. It is quite clear from the rulings quoted that one of two or more joint co-owners can sue for ejectment of a trespasser. With regard to the ejectment of a tenant there may have been some difference of opinion but it seems settled law that one of two or more joint co-owners can sue for ejectment of a trespasser provided he makes the other co-owners parties to the suit. He can also sue for rent of the holding under the same conditions and in that case a decree should be passed in favour of the plaintiff and the defendant co-owners, who would be joined as defendants if they refuse to be joined as plaintiffs. This view has been taken in the previous suit between the parties as appears from the appellate judgments filed as Exs. D-8 and D-9. I would also refer to the ruling in Pramada Nath Roy v. Ramani Kanta Roy [1908] 35 Cal. 331. It seems clear that one or more joint co-owners can sue for ejectment of a tenant as regards his share in a holding and can sue for his share of the rent, if he makes the other co-owners parties to the suit. The learned advocate for the appellant relies upon the ruling in Ramji Patel Kunbi v. Syed Nur [1908] 4 N.L.R. 45 where it has been laid down that for avoiding a transfer made by an absolute occupancy tenant under the Central Province Tenancy Act all the landlords or co-owners must join. It seems to me, however, that there is a difference between avoiding a transfer, which is not in itself void, and which is valid unless it is avoided by a special procedure and ejectment of a tenant, which is the inherent right of every landlord, unless there are special conditions to the contrary. I am fortified in this view by the ruling in Daryao Shah Gond v. Tiran Shah Gond [1906] 2 N.L.R. 45 and I would refer to pp. 47 and 48 of that ruling. Unless this view is taken it is clear, as in the present case that one co-owner by colluding with a tenant can entirely defeat the rights of the other co-owners. I would hold, then, that one co-owner can sue to eject a tenant as regards his share in the property and can sue for his share of the rent making the other co-owners parties to the suit.

(2.) SIMILARLY it would follow that if one co-owner can sue for ejectment as. regards his share, he can certainly, give a valid notice to quit as regards his share. The appeal, therefore, fails and in my opinion, the view taken by the lower appellate Court is correct and the decree, should be for the plaintiff's share, i.e., half share in the fields. As regards the cross-objections there is little to be said. The view taken by the lower appellate Court is, as already stated, correct. The plaintiff can sue as regards his own share, but he cannot sue as regards the whole of the fields, as he has only a half share in the jagir There is no evidence to show that the plaintiff is the superior holder or in any way the manager of the jagir. The case quoted, Vithal v. Waman A.I.R. 1925 Nag. 140 is beside the point, because now Under Section 188, Central Prov. Land Revenue Act a lambardar is expressly recognized as the agent of the proprietary body and, therefore, he has certain definite powers. In the case of this jagir there is no analogy between the plaintiff and a lambardar under the Central Provinces Land Revenue Act and, as already stated, it has net been shown that the plaintiff has even been declared to be the superior holder or manager. On the contrary Ex. P-6, itself, on which the plaintiff relied, shpw3 that the Deputy Commissioner had only proclaimed him as jagirdar and expressly stated that he had no power to proclaim him as the superior holder. There is no force in the cross-objections which are dismissed. The appeal and cross-objections are both dismissed. Costs of the appeal will be borne by the appellant. Costs of the cross-objections will be borne by respondent 1. Costs in the Court below will be borne as ordered by the lower appellate Court.