The Appellants before us were the Plaintiffs Nos. 1 to 3 in the Court of first instance and are proprietors to the extent of eight annas odd gundas in a parcel of land comprising 141 bighas, which is in the possession of the persons who have been referred to as the principal Defendants in the suit. With the Appellants certain other persons joined as Plaintiffs who represented a two annas interest in the same property, and the remaining interest is vested in the pro formâ Defendants. The suit was for what has been described as partial ejectment of the principal Defendants, that is to say, the Plaintiffs asked for khas possession to the extent of their share in the land jointly with the principal Defendants, and, there was an alternative prayer, that if the Court should think fit, the principal Defendants might be declared liable to pay to the Plaintiffs a fair and equitable rent to be determined by the Court.
The Plaintiffs' case was that the ten-ant-Defendants held the lands in suit in lieu of certain services to be performed by them as farrshes; and that as they no longer performed or were disposed to perform these services, they had consequently served upon them a notice calling upon them to quit and give up possession of the land, but they failed to do so; and, hence the suit.
In the Court of first instance, the Plaintiffs obtained a decree, but on appeal that decree was reversed by the learred Judge and the suit was dismissed.
Here it is contended, that the learned Judge was wrong in dismissing the suit, and the points pressed upon us for the Appellants were that the learned Judge should have given them a decree for partial ejectment or that if they were not entitled to that relief he should have fixed a fair and equitable rent to be paid to them by the principal Defendants, for the occupation of the land. It was further contended, that if any notice to quit was necessary as a preliminary to the action, the case ought to be remanded for the purpose of having it determined whether such a notice had not in fact been served upon the principal Defendants, since although the point had been raised in the pleadings, no decision had been arrived at on it by the Court below.
The judgment of the learned Judge is not very clear, I confess to my mind, as to the actual nature of the relation subsisting between the principal parties to the suit: but the Subordinate Judge has given a history of the tenant-Defendants' tenure, which has, I think, only to a very slight extent been dissented from by the learned Judge, the difference between them being that while the Subordinate Judge arrived at the conclusion that in its inception the tenure was held at a pecuniary rent and was afterward by consent of parties converted into a service tenure, the learned Judge has found that it was from the beginning a service-tenure and has so continued down to the present time. Whether, as the Plaintiffs assert, there had been any discontinuance on the part of the tenant-Defendants of the service for the rendering of which they had been permitted to hold possession of the land, there has been no finding But we must take it, in the absence of a finding to the contrary, that the tenure being of the nature found by the lower Appellate Court, the principal Defendants were and are willing, if indeed the point be really material, to render the service in consideration of which they have held the land, if they be called upon to do so. But the learned Subordinate Judge has indicated an explanation of the present attitude of the Plaintiffs towards them pointing out that on the death of one of the co-sharers in the zemindari, the estate passed into the hands of the Court of Wards and that the Court of Wards being of opinion that the services rendered were not a fair equivalent for the value of the land held, endeavoured to get something of a higher value from the tenants and that its attempt has led to the present difficulty.
Reverting to the questions, which as I have stated were raised before us, the learned vakil for the Appellants founded his contention that his clients were entitled to a partial ejectment upon three cases which he cited to us. The first case was an old case, Hulodhur Sen v. Gooroo Doss Roy(1). Then he referred to the case of Radha Proshad Wasti v. Esuf(2) and, lastly, to the case of Kamal Kumari Chowdhurani v. Kiran Chandra Roy(3). These cases, however, all of them, are cases in which an individual co-sharer has let a person into the possession of the land as tenant without the consent of the co-sharers seeking to eject that person from the land: and we think upon that ground they are distinguishable from the present case, because as we understand the judgment of the Courts below with respect to the position of the parties, the Defendants were originally let into possession of the land as tenants by all the co-sharer in the zemindari: and it appears to us that in order to justify any individual co-sharer in seeking now to eject them, it must be shown that the tenancy so created by all the co-sharers has been determined by all of them, and the law will not permit a single co-sharer to take separate and independent action, such as has been taken by the Plaintiffs in this case, for the purpose of determining, even so far as his own share is concerned, a tenure or tenancy which has been created by the common consent of all the co-sharers. The law is clearly so laid down in the case of Radha Proshad Wasti v. Esuf to which I have already referred. It seems to us, therefore, that there being no evidence of the determination of this chakran tenure by the common consent of the co-sharers who now represent the original creators of the tenure and the tenancy being therefore still a subsisting tenancy, it is not competent to the Plaintiffs to maintain a suit for ejectment of the Respondents.
In this view, it is unnecessary, that we should consider in detail the other points, raised on behalf of the Appellants, for the judgment of the lower Court may be maintained upon the principle to which I have just referred. But we may add, I think, that this case not being governed by the provisions of the Bengal Tenancy Act but being referable to what I may call, for the sake of convenience the common law of the country, it is difficult to perceive upon what footing it would be competent to the Court to grant the relief secondly claimed by the Plaintiffs, namely, the fixing as between them and the tenant-Defendants a fair and equitable rent which would be in effect to create a new contract of tenancy between them. However, it is sufficient, for the purpose of this appeal, to say that on the ground we have already mentioned, we think that the judgment of the Court below should be maintained. And we accordingly dismiss this appeal with costs.
S.C.S
Appeal dismissed.