1. This appeal is from the judgment and decree of the learned Subordinate Judge, Lower Assam Districts by which the order of the learned Munsiff of Dhubri dismissing plaintiffs' suit was reversed and plaintiffs' suit decreed.
2. The facts leading to this appeal are as follows:— Defendant No. 1 who has been sued for ejectment executed a Kabuliyat in favour of pro forma Defendant No. 2. The Kabuliyat was for three years. The period expired at the end of Chaitra 1356 B.S Plaintiffs claim to be the successors in interest of the original lessor, pro forma defendant No. 2. Half of the tenancy was transferred by defendant No. 2 to Pulin Bihari Paul, the predecessor-in-interest of plaintiffs 2, 3 and 4. The other half was transferred to plaintiff No. 1 who is an uncle of plaintiffs 2 to 4. A notice of ejectment was sent to defendant to vacate the house as the term of the lease had expired. The defendant's case was that the suit was bad for misjoinder of plaintiffs and causes of action. The validity of the notice was also questioned and it was further pleaded that plaintiffs did not bona fide require the house for their own purposes. The learned Munsiff came to the conclusion that the suit was bad for misjoinder of parties and causes of action and dismissed the suit on that ground alone without giving any findings on other issues.
3. On appeal the learned Subordinate Judge found that there was no misjoinder of plaintiffs, nor was there any necessity of any notice to quit as the tenancy had terminated by afflux of time. He also found on evidence that defendants were liable to eviction. He therefore decreed the claim. The contesting defendant has appealed to this court.
4. The learned counsel for the defendant has raised two points namely (1) that the suit is bad for misjoinder of plaintiffs and causes of action, (2) that the plaintiffs have failed to substantiate their bona fide requirements, and therefore are not entitled to a decree for eviction.
5. So far as the first contention is concerned, it is completely devoid of any merit. It is answered by the provisions contained in O. 1, R. 1 of the CPC which provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, serverally or in the alernative, where, if such persons brought separate suits, any common question of law or fact would arise”.
6. The requirements of the rule would be satisfied if any right to relief arises in favour of the plaintiffs out of the same act and if any common question of law or fact would arise if separate suits were instituted.
7. Both these requirements are fulfilled by the suit as laid. It is evident that the right of all the plaintiffs to the relief claimed in the case arises out of the same transaction of lease. There was a Kabuliyat executed in favour of defendant 2, the predecessor-in-interest of the plaintiffs.
8. Plaintiffs stand in the shoes of defendant No. 2 and they become lessors in her place. The original tenancy has continued. The right for ejectment of the defendant flows from that single act, the original agreement of the tenancy. Defendant 1 became a tenant under the Kabuliyat and got the house leased to him for a certain period which has expired, so that right to relief arises undisputedly out of the same act or transaction in favour of all the plaintiffs.
9. Mr. Sen has contended that the tenancy in this case was severed or split up. Defendant 2 transferred one part to the father of the plaintiffs 2 to 4 and the other part to plaintiff No. 1. Plaintiffs also demanded rents separately from the defendant. These facts are not denied.
10. Mr. Sen argues that there was thus a complete severance of the tenancy. Different plaintiffs were entitled to different parts and were asking for cent of their own portions. Therefore they had separate causes of action and could sue for their separate parts.
11. He has cited some authorities in support of the proposition that in such circumstances the two units of the plaintiffs could sue separately for ejectment and also for rent. But these authorities do not support his contention. Plaintiffs may have the right to sue separately for any relief they may be entitled to. But from that it does not follow that they are precluded from instituting one suit when the right to the main relief they are asking arises out of the same act or transaction.
12. It is clear that the first requirement of O. 1 R. 1 is fully satisfied. The second requirement is that some common question of law or fact should arise if separate suits are instituted. The liability to ejectment under the terms of the Kabuliyat would be a question common to both suits.
13. It is not necessary that all questions arising in the case should be common to two suits if plaintiffs cosharers had instituted separate suits. If even one question of law or fact common to both the suits could arise, there would be justification for joinder and the requirement of R. 1 of O. 1 would be satisfied. The defence actually set up would have been raised in both the suits.
14. The suit therefore is within the ambit of O. 1 R. 1 and is not bad for misjoinder of plaintiffs and causes of action in spite of the admitted circumstances of the case. The contention therefore is repelled.
15. Even if there were misjoinder of plaintiffs and causes of action as argued, there would be no justification for reversing the appellate decree.
16. The misjoinder admittedly does not affect the jurisdiction of the court and Mr. Sen has not been able to show me how the merits of the controversy are affected by the joinder complained of. Apart from the plea of misjoinder the only other plea is that plaintiffs did not require the house for their own use. The joinder has caused no difficulty in the consideration of this plea.
17. The alleged bona-fide requirement of the plaintiffs could be considered without any difficulty from the view point of the two units of plaintiffs and without causing any prejudice to the defendant. In point of fact the defendant himself has made no distinction between the plaintiffs so far as this plea is concerned. He has not given any evidence for distinguishing the case of the one side from that of the other.
18. In fact he has given no evidence at all on the point. No prejudice has been caused to the defendant Page: 9and the joinder has not advisedly affected the case of the defendant on the merits.
19. The trial court has not given any finding on the question whether the plaintiffs required the house bona fide. There is no specific issue on the point though there is one issue which embraces the larger question of the liability of the defendant to ejectment. The question could have been dealt with under that issue. The learned Subordinate Judge has disposed of this issue in his judgment by the observation that he was satisfied that defendant was liable to eviction.
20. This is not a proper disposal of the point in question. I have therefore permitted the learned counsel for the parties to refer me to evidence on this point. This evidence is again very scanty. One of the plaintiffs appeared in the witness box and deposed that the plaintiffs had migrated from East Pakistan, they had no house of their own and they needed the house for their own use. Defendant has produced no evidence. He did not even come into the witness box himself. The statement of the plaintiffs remains unrebutted & if the statement is believed, bona fide requirement would be established. I see no reason to disbelieve the statement, particularly in view of the fact that the defendant has not ventured to contradict the plaintiffs' statement or claim. Since the evidence in this case consists only of the statement of the plaintiff I do not consider any useful purpose would be served by remand of the case for a finding on this issue.
21. Mr. Sen has not pressed that the suit is liable to dismissal on the ground that there was no valid notice. The appeal in these circumstances fails and is dismissed with costs.
22. Appeal dismissed.