Hill and Brett, JJ.:— This was a suit brought by the appellant for a declaration of his title to and possession of 350 bighas of land situated in mouzah Jogendra Nagor in the Sunderbuns under a permanent clearing lease granted to him on the 2nd Magh 1292 by the first defendant. His case was that in the year 1291 the first defendant placed him in possession of the land in question under an amalnama, when he immediately set on foot operations preparatory to the clearing of the land by raising embankments and closing khals and ditches. In the following year, on the execution to him of the lease by the first defendant, he completed these works and cleared the land of jungle and brought it into a condition fitting it for cultivation. In the month of Falgoon 1293, the defendants 2 to 5 and 7 to 11 and father of defendant No. 6 “conspiring together and in collusion with the first defendant” forcibly dispossessed him of the land, and hence this suit.
The pleas raised by the defendants who answered the suit were in substance the same. It was pleaded that the suit was bad for multifariousness, inasmuch as the now respondents were severally in possession of definite and distinct portions of the land under different demises by the first defendant, and that there was no, community of interest between them; that the plaintiff's lease was not genuine; that he had never obtained possession of the land; that he had never executed any of the works mentioned in the plaint; that the respondents had taken their respective pottahs from the first defendant in good faith and had entered into possession thereunder, and had incurred considerable expense in embanking, clearing, and laying out their lands and rendering them fit for cultivation; and that consequently the plaintiff, if entitled to succeed at all, could not obtain possession without compensating them for their outlay. A further plea was taken in argument before the Subordinate Judge on the authority of Binad Lal Pakrashi v. Kalu Pramanik to the effect that the respondents being cultivating raiyats were not liable to eviction. The learned Subordinate Judge, however, declined to go into this question, as it had not been raised by the issues and involved the determination of the status of the respondents.
The Subordinate Judge found on the question of multifariousness as well as with respect to the genuineness of the lease in favour of the plaintiff. He, however, held that he had not obtained possession in the manner alleged by him. He also held that the respondents had taken their leases without notice of the plaintiff's title; that they had since then been in possession and had incurred considerable expense in the improvement of the land, and that they were entitled to compensation on the footing of the value of their improvements at the time of eviction before the plaintiff could obtain possession. Upon a question of estoppel raised in argument, the learned Subordinate Judge held that there was no such bay to the plaintiff's obtaining possession under his lease. He accordingly gave the plaintiff a decree for possession subject to the payment of compensation to the respondents.
From that decree both the plaintiff and the defendants appealed to the District Court. There were in point of fact four appeals; the present respondents having appealed in two groups and the first defendant having preferred an independent appeal. We notice this circumstance now in consequence of an objection taken in this Court, which it may he as well to clear aside at once. The objection was that the appeal to the lower Court of one of the groups of respondents was not filed within time, and ought not therefore to have been entertained. The learned District Judge, however, admitted the appeal after a consideration of the circumstances, and we are not prepared to hold that he exercised his discretion in the matter improperly.
All the questions dealt with by the Subordinate Judge seem to have been reopened in the District Court. Upon the questions of multifariousness and the genuineness of the plaintiff's lease, the findings of the learned District Judge were the same as those of the Lower Court. He, however, disagreed with that Court with regard to the plaintiff's possession, his finding being, as we understand the judgment, that the plaintiff did enter into possession under his lease and cut jungle, prepare embankments, culverts, &c. He also held contrary to the view of the Subordinate Judge that the plaintiff was estopped from asserting his title to possession as against the respondents, and that the latter were not liable to eviction with or without compensation.
Upon these latter questions, however, his judgment is quite inadequate. Having found as to the plaintiff's possession; the multi-fariousness of the suit; and the genuineness of the plaintiff's lease in the way we have mentioned, the learned Judge then, without in any way adverting to the facts upon which he bases his decision on the remaining questions, thus concludes his judgment.
“Thus, on these findings the defendant No. 1's appeal is dismissed with costs; the plaintiff's appeal is dismissed with costs, and the defendant tenants' appeals are decreed modifiedly with proportionate costs. They cannot be evicted with or without compensation, both under s. 115, Evidence Act, and as bonâ fide tenants under a trespasser. See the cases of Mohima Chunder Shaha v. Hazari Pramanik and Binad Lal Pakrashi v. Kalu Pramanik. If they do not come to terms with the plaintiff, all he can do is to sue for enhancement, if so advised.”
The result of this decision would seem to be to decree the plaintiff's suit qua the first defendant, to dismiss it in so far as it sought the ejectment of the respondents, and to place the plaintiff in a relation to the respondents which he never claimed,—to constitute him their landlord, in other words;—while his suit was to eject them as trespassers and to regain khas possession of the land for himself; that being indeed the only form of relief to which on the case made by him he could be entitled.
Both the plaintiff and the tenant defendants have appealed to this Court, or, more accurately, the plaintiff having appealed, “the tenant defendants” have filed cross-objections under s. 561 of the Code of Civil Procedure. The first defendant has not appealed nor is she a party to the cross-objections. The material questions raised by the reasons of appeal are, whether the plaintiff is entitled to evict the respondents without first paying them compensation for improvements, and whether the respondents had any good ground for resisting a decree for ejectment, or could resist such a decree on grounds which were not taken in the pleadings nor covered by any of the issues, and which were not tried in the Court of First Instance. The “grounds” here referred to are the estoppel found by the learned District Judge to exist in favour of the respondents, and his finding that as tenants under a trespasser they could not be evicted. The cross-objections raise again the question of multifariousness, and take exception to that portion of the judgment of the learned District Judge in which he indicates enhancement of rent as a remedy open to the plaintiff.
We have felt some hesitation as to whether, having regard to the very unsatisfactory nature of the learned District Judge's judgment, it would not be the better course to remit the case to the lower Appellate Court for a fresh decision; but as all the above questions have been very fully argued here on the facts as they are to be gathered from the judgments of the Lower Courts, and as the points upon which the respondents succeeded before the learned District Judge were not raised by the pleadings nor involved in the issues framed in the Court of First Instance, and could therefore be properly dealt with at all by that Court only on the assumption that the materials before it were sufficient to enable it to arrive at a just decision, we think it best on the whole to dispose of the case finally ourselves.
The facts upon which the argument before us proceeded may be summarised as follows:—The plaintiff and the first defendant are the owners of adjoining chaks of jungle land, that of the former comprising 1,000 bighas, and of the latter 400 bighas. In the year 1291 the first defendant granted an amalnama to the plaintiff in respect of 350 bighas out of the 400 contained in her chak. In the following year on the 2nd Magh she granted him a permanent clearing lease of the same land, which he was to hold for the first two years rent free, and ultimately at a maximum rate of 14 annas per-bigha. The plaintiff thereupon entered into possession and raised embankments, constructed culverts, land brought the land either partially or wholly into a state fit for cultivation. He never, however, paid rent to the first defendant, having been dispossessed before the period during which he was to hold rent free had expired. During the month of Assin 1293 the first defendant granted clearing leases to the respondents of different portions of the lands demised by her to the plaintiff. How many such leases there were and to what, areas they extended respectively does not appear. The leases or not before us, but it is agreed that there were several leases; that ??? were all registered, and registered on the same day; and that taken collectively, they covered the whole of the land comprised in the plaintiff's lease, and that they were similar in kind to the plaintiff's lease, that is to say, permanent clearing lease, the only material point of difference being that they reserved to the lessor a higher rate of rent than that reserved by the plaintiff's lease. They were taken bonâ fide by the different lessees, i.e, in ignorance of any claim on the part of the plaintiff, and the lessees immediately afterwards entered into possession and began to cultivate the land. Since then they have remained in possession without any interference or claim on the plaintiff's part, and have spent varying amounts upon the improvement of the land. The precise nature of these improvements is not very clear, but it may be taken from the finding of the learned Subordinate Judge, which has not been dissented from by the learned District Judge, that the respondents jointly raised an embankment and also had some land cleared as a joint venture.
Upon these facts, and dealing as we are with this case in second appeal we cannot go beyond them, or draw for ourselves inferences of fact, we do not think that the view that the plaintiff is estopped from asserting his title as against the respondents can be sustained. There are several elements of an estoppel of the kind now sought to be set up which are absent. It is not pretended that the respondents were induced to take their leases in consequence of any representation on the part of the plaintiff, or that their action in that respect was at all influenced by anything done or omitted by him. But it was said that he, having stood by and allowed them to spend their money in improving the land in the belief that they had a good title, cannot now be permitted to say that the land is not theirs. Assuming, however, that the mere quiescence of the plaintiff amounted to a representation, there is no finding either that it was intended that the tenant defendants should believe or act upon it, or that in point of fact they did act upon it. The facts as stated above are consistent with the supposition that the plaintiff did not even know what the tenant defendants were doing upon the land, and they are also consistent with the view that the latter expended their money not on the faith of any representation made by the plaintiff, but in the belief that under their leases they had acquired a good title to the land. We think therefore that the estoppel has not been made out.
Then, with regard to the position that as tenants of a trespasser the respondents are not liable to eviction, we think the judgment of the learned Judge is equally unsustainable. The Full Bench case of Binad Lal Pakrashi v. Kalu Pramanik, upon which he relies, has in our opinion no application to a case such as the present. The doctrine there laid down is, in the first place, confined to persons, who have acquired a right to hold land for the purpose of cultivating it—who are, that is, raiyats, and does not extend to all classes of tenants. The status of the respondents has not, however, been determined, nor are we in a position to express any opinion upon the question. It was for this reason that the Subordinate Judge very properly refused to decide anything upon the present point. No issue, as he observes, had been raised with regard to it, and without a determination of the status of the tenant defendants, it would be impossible to say whether they came within the class to which the Full Bench decision relates or not. The learned District Judge has, moreover, misconceived the position of the first defendant. It is not suggested by any one that her position was that of a trespasser. She was the owner of the land, and undoubtedly had the right, unless she had previously, by anything she had done, deprived herself of it, of granting the leases to the tenant defendants. The only question here is, whether the true owner having granted a permanent lease of certain land to one person, is competent afterwards, while that lease is subsisting, to grant a lease of the same nature and of the same land to another person. To such a case, whether the latter be let in for the purpose of cultivating the land or not, the Full Bench case has no application, and we have no doubt that the proper answer to this question is in the negative. We should hardly indeed have thought that the matter was open to argument, but for the insistence with which the learned Counsel for the respondents pressed upon us the contrary view.
Both the reasons therefore, for which the learned Judge decided against the plaintiff, fail; and if there were nothing more, he would accordingly be entitled as against the respondents to a decree for possession. There remain, however, the questions whether the suit is bad as embracing several distinct causes of action and ought on that account to be dismissed, and whether the plaintiff ought to be allowed to deprive the respondents of possession without compensating them for their improvements. With respect to the former question, the position taken at the trial in the Court of First Instance by the respondents was, as appears from the judgment of the learned Subordinate Judge, that each of them separately held a specific area of land under a distinct and separate lease; that there was no unity of interest among them, and that the plaintiff had failed to establish that he was dispossessed by the defendants collectively, and it was contended on the authority of various cases to which reference was then made; that, unless “such collective act of tort” were proved, the misjoinder was fatal to the suit. The same position has been taken up by the respondents in this Court, and their learned Counsel cited to us several Indian cases bearing upon the question. The cases on the subject are, however, difficult to reconcile, and we do not propose now to deal with them in detail, as it seems to us unlikely that an examination of them would lead us to any definite result. It may be observed, however, that there is in the plaint, in the present case, an allegation that the first and other defendants conspired together forcibly and without right, to dispossess the plaintiff, which might be sufficient to distinguish it from several of the cases relied upon by the learned Advocate-General. But although the question of combination on the part of the defendants was thus raised; and although the learned Subordinate Judge refers to certain circumstances which apparently tended in his view to support the supposition of combined action, neither of the Courts below has arrived at any finding upon the point, and we think it better therefore to give our consideration to the plea raised by the respondents here without advertence to the allegation referred to.
The question, then, is whether the plaintiff, suing as he did on his lease for the recovery of the land thereby demised to him, was wrong in making those persons defendants whom he found in actual possession of the land. It was said that he was wrong on two main grounds—firstly because the titles under which the respondents professed to hold possession were distinct, and the plaintiff's cause of action against each of them was therefore distinct, and, secondly, because the plaintiff had failed to establish that the respondents had combined for the purpose of dispossessing him. Neither of these reasons appears to us to be satisfactory. The cause of action of a plaintiff suing in ejectment cannot, so far as we can perceive, be affected by the title under which the defendant professes to hold possession. It matters not to the plaintiff how the defendant may explain the fact that he is in possession or seek to defend his possession. What concerns the plaintiff is that another is wrongfully in possession of what belongs to him, and that fact gives him his cause of action. If this is so, where there is but one person in possession, can there be a difference when the land is in the possession of more than one? We think not. It appears to us, so far as the plaintiff's cause of action is concerned, that it is a matter of indifference to him upon what grounds the different persons in possession may seek to justify the wrongful detention of what is his. What he is entitled to claim is the recovery of possession of his land as a whole and not in fragments, and we think that all persons, who oppose him in the enforcement of that right, are concerned in his cause of action and ought accordingly to be made parties to a suit in which he seeks to give effect to it. This was the view taken in Ishan Chunder Hazra v. Rameswur Mondal, and the cases which were there approved of, which in our opinion ware rightly decided. Looking at the question from a different point of view, it may well, we think, be asked, how is a plaintiff, when he proposes to sue for the recovery of land in the possession of several parsons, to know under what titles they profess to hold it, or whether in possessing themselves of the land they have acted in combination or independently? He cannot call upon them beforehand to disclose their respective titles. All may hold under a joint claim of title for aught he can know, or some jointly and some severally; but if the contention of the respondents in the present case be correct, he can ensure himself against defeat only by bringing as many actions as there are persons in possession, and the result of this would be, that if he succeeded in establishing his title, he would recover in several parts what he was entitled to recover as a whole. Other inconveniences and difficulties to which we need not now refer more particularly would, we think, arise, were the contention of the respondents to be accepted.
In England, as was pointed out in Ishan Chunder Hazra v. Ramswar Mondol in an action in ejectment, “all the parties in possession are joined,” and this includes the lessor as well as the tenants, if the lessor happens to be in possession of part of the land in suit (see Dicey on the Parties to an Action, p. 495, note (e)). The old action of ejectment has, it is true, been superseded in England by the modern action for the recovery of land, but the rule as to the persons who should be made defendants to the action has not been changed save in so far, that it is no longer compulsory on the plaintiff to make all persons in actual possession defendants,—a relaxation of the old rule which is in favour of the plaintiff, though it is considered to be the more convenient and proper course that all such persons should be made defendants. Now, although the Courts in England still adhere to the rule against multifariousness (with qualifications which it is unnecessary now to refer to), we have yet been unable to find any case in the English reports in which exception has been taken to the frame of an action for recovery of land on the ground, that as the defendants claimed under different titles, they ought not to have ben joined in the same suit. The case of Minet v. Johnson may, however, though not in point, be usefully referred to. There is also another case before the Master of the Rolls in Ireland, Hodgins v. Hickson to which we may refer as bearing upon one of the considerations, to: which we have alluded above. There, one of the defendants to an action for the recovery of land demurred to the statement of claim, the contention in support of the demurrer being that the statement of claim was bad, as it contained no facts to show upon what the plaintiffs relied as against the demurring defendant, or how or when he had come into possession. It was further urged that the plaintiffs did not say that the defendant had wrongfully entered upon or wrongfully withheld possession of the lands from the plaintiffs. The Master of the Rolls overruled the demurrer, holding that the plaintiffs had set out a title in the statement of claim good against all the world, and that it was not necessary to allege that the defendant was “wrongfully” in possession. He then goes on, having referred to the terms of the demurrer, “how can the plaintiffs know what sort of possession the defendant Hickson may have? He may be, as in ninety-nine instances out of a hundred in similar cases the fact is, a squatter. And if I were to allow this demurrer to stand, it would imply the extraordinary proposition that a plaintiff before he can recover his lands must set out how every squatter got in upon them. If I did not set it aside, I would be laying down a precedent for a most sweeping revolution in the land law of the country. Take the case of a remainder man, after a long series of limitations, can it be contended that when he brings his ejectment to obtain possession of his property, he must demonstrate the title of every one of the tenants on the estate against whom he seeks to make a title? Must he show when each of them got in and by what title he holds? In actions for the recovery of land it is enough for the plaintiff to set out his claim, so that the defendant may know what title he has to meet. To hold otherwise would be to involve a plaintiff in “difficulties, of which I cannot see the limit.” These observations seem to us to support us in certain of the considerations to which we have adverted above, and it is, we think, significant also that although the defendant there was ready apparently to go a long way in order to defeat the action, and although on the facts he might have objected to the frame of the suit on a ground similar to that now taken here, no such objection was raised on his behalf. It may perhaps be said that we are not bound in this country by English or Irish rules of procedure,—that may be true. But those rules are founded on sound principle, and may therefore, we think, be referred to when questions of principle come in, and we are not aware that a suit for recovery of land in this country differs in principle from a suit for the same purpose in England. For the foregoing reasons, we think that the objection to this suit on the ground that the respondents hold possession under different titles is not maintainable.
Then, as to the objection founded on the fact that the plaintiff had failed to prove that the respondents had acted in combination in dispossessing him, the fallacy we think underlies it of supposing that the plaintiff's cause of action is dependent on the original act of dispossession. If he were suing in trespass for damages, for the wrongful entry upon his land, the objection might be well founded, but that is not the nature of the action here. What gives the plaintiff his cause of action is, we think, the wrongful detention of the land which is his—not the taking of it. Just as in detinue the gist of the action is the wrongful detention and not the original taking or obtaining of the goods; and as in that action it is immaterial whether the goods were originally obtained by lawful means, as by a bailment, or by a wrongful act, such as a trespass, so we think it is with respect to a suit for the recovery of land.
We therefore think that the objection to the suit on the ground of multifariousness wholly fails.
We have lastly to consider whether the plaintiff is entitled to evict the respondents without compensating them for improvements executed on the land. Upon this question the respondents placed reliance on the provisions of s. 51 of the Transfer of Property Act. But we think, for the reason stated by Banerjee, J. in Ismail Khan Mahomed v. Jaigun Bibi, i.e, “because a tenant could not possibly believe in good faith that he was absolutely entitled to the land,” that the section is inapplicable here. But although the respondents may not be in a position to avail themselves of the provisions of the section, we think that if it had been shown that the plaintiff knew that they were expending money upon the improvement of the land, and knew also they were doing so in the belief that they had a good title, and that he nevertheless stood by and allowed them to proceed with their expenditure, he ought not to be allowed now to insist as against them on his legal right, without indemnifying them for their outlay (see Cawdor v. Lewis and Wilmott v. Barber(3). The existence of neither of these facts, however, has been found in this case and the claim of the respondents for compensation therefore fails. We accordingly see no alternative, but to decree the plaintiff's claim for possession of the land in suit with costs in all Courts. We, however, think that, under all the circumstances of the case, his right to recover mesne profits should be restricted to the period subsequent to the institution of the suit. The decree of the Lower Appellate Court will therefore be set aside in so far as it affects the plaintiff's right to obtain possession as against the respondents, and the decree of the Court of First Instance will also be set aside to the extent to which it makes the right of the plaintiff, to obtain possession contingent on his paying compensation to the respondents for improvements executed by them on the land, and directs an enquiry as to such improvements, as also in so far as it decrees the plaintiff's claim for mesne profits for any period prior to the institution of the suit. Iln other respects it will stand good.
S.C.G
Appeal allowed.
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