KHATAJAN BEWA Vs. ASWINI MOHAN GHOSE

JUDGEMENT

(1.) These are appeals on behalf of the defendants in four suits for ejectment, brought by the plaintiffs-respondents upon the allegation that they were the landlords of the disputed lands. The Court of first instance dismissed the suits. Upon appeal the Subordinate Judge has decreed them. It appears that on the 21 December 1886 the pre-decessor-in-interest of the plaintiffs and one Doulatunnesa purchased about 242 bighas of land within which the disputed lands are situate, from the Nathpore Indigo Company. One of the points in controversy between the parties is as to the precise interest in the land which was conveyed by this deed. More than three years afterwards Doulatunnesa took three kabuliats from Pattan Mithu and Pocha, on the 17 June 1890, in respect of 15 cottahs, 12 1/2 pakhis and 19 pakhis of the land. The precise nature of the rights created in the defendant by these kebuliat is another point in controversy between the parties. In suit No. 255 the plaintiffs seek to eject the defendants from 4 pakhis out of 121/2 pakhis comprised in the tenancy of Mithu. In suit No. 256 the plaintiffs seek to eject the defendants from 4 pakhis out of the 15 comprised in the tenancy of Pattan. In suit No. 257 the plaintiffs seek to eject the defendants from 3 pakhis out of the 19 comprised in the tenancy of Pocha, and in suit No. 258 the plaintiffs seek to eject the defendants from 2 pakhis out of the 15 comprised in the tenancy of the Pattan. It is obvious, therefore, that plaintiffs in each suit seek to eject the defendant from a portion only of the land originally comprised in each tenancy. The circumstances under which they claimed to be entitled to do so may be shortly described. In 1897 there was a partition amongst the proprietors, the result of which was that the tenancy of 242 bighas purchased from the Nathpore Indigo Company fell into the shares of different proprietors. The plaintiffs apparently got 18 annas share of the land comprised in the tenancy less 6 bighas, and Doulatunnesa got these 6 bighas as well as three annas of the land comprised in that tenancy. The plaintiffs allege that the land in respect of which they seek decrees for ejectment have all fallen into their share and that, therefore, they are entitled to maintain this action for ejectment without joining as parties to the suit their former co-sharer Doulatunnesa. The Court of first instance held that the suits were bad for defect of parties, but apparently not on the ground that Doulatunnesa had not been made a party. What was alleged on the other hand was that the defendants had other persons as co-sharer tenants and that no decree for ejectment could be made in their absence. The Court of first instance also found that the property purchased in 1886 was in the nature of a tenure and that the status of the defendants was that of raiyats, who were consequently not liable to be ejected. In this view of the matter as previously stated, the Court of first instance dismissed the suits. Upon appeal to the Subordinate Judge, he has held that the suits are not bad for defect of parties. Upon the merits he has held that the status of the defendants is that of under raiyats and that therefore the tenancy has been terminated under Section 49, Clause (b), of the Bengal Tenancy Act by an appropriate notice to quit. In this view the Subordinate Judge has decreed the suits. These decrees have been assailed in this Court on behalf of the appellants substantially on three grounds, namely, first, that the suits could not be maintained in the absence of Doulatunnesa, secondly, that the decision of the Subordinate Judge upon the question of the status of the defendants is erroneous, and thirdly, that there was a covenant entered into by the landlords at the time of the partition in 1897 under which the plaintiffs are precluded from ejecting the present appellants.

(2.) As regards the first of these contentions it has been pointed out by the learned vakil for the respondents, that no objection taken into the Court of first instance the ground that Doulatunnesa had not made a party. From an examination of the record it appears that this position is yell founded.

(3.) Doulatunnesa could be treated as a necessary party only for the protection of the defendants, and if they had omitted to take that objection in the Court of first instance at the proper stage they must be taken to have waived that objection. I cannot therefore, entertain the first ground taken on behalf of the appellants (S. A, 1513 of 1907, decided 19 March 1909),