Wort, J.:— The learned Deputy Commissioner in this case has dismissed the plaintiff's claim on two grounds: first, that it was a claim in ejectment and that the plaintiff had not proved himself to be in possession within 12 years; and, secondly, that the defendants were non-occupancy raiyats and therefore could not have been ejected excepting under the provisions of Section 41 of the Chota Nagpur Tenancy Act which conditions admittedly do not obtain in this case. The only substantial question before us is what is the status of the defendants? They were inducted upon the land by one of the co-sharers during the currency of the thica lease which expired in the year 1336. Very soon after that settlement, the co-sharer who was not a party to the settlement brought an action against the defendant-respondents and obtained a decree for joint possession. In the events which happened that decree was not executed, one would imagine the reason being that by the time the execution could have been taken out the thica lease under which the plaintiff in that action had title, had expired. But we are not in possession of facts regarding that and indeed the matter is irrelevant excepting for the purpose of dealing with an argument which was advanced by Mr. De.

2. One of the contentions of Mr. De was that although the grant to his clients (the defendants) had been made by one of the co-sharers only, it must be inferred from the fact that execution was not taken out in the action to which I have just made reference, that the whole body of the co-sharers had subsequently consented to the grant which was originally made by one of the co-sharers. The reason for that contention is to meet the statement of learned Judges of the Calcutta High Court in two cases to which I shall in a moment make reference, one contained in Vol. 20 and the other in Vol. 25 of the Calcutta Law Reports. But there is no basis for that argument. Whether the whole body of the co-sharers had subsequently agreed to the grant by one of the co-sharers is undoubtedly a question of fact, and if any inference was to be drawn from the facts of which we are in possession, it would be impossible to come to the conclusion for which Mr. De contends. Indeed the very fact that the action was brought by one of the co-sharers against his clients (the defendants) will show that he repudiated the action of his other co-sharer. But the facts as found in this case, and which must be the basis of our judgment in this appeal, are that the defendants were inducted upon the land by one of the co-sharers only.

3. Now, as I have already stated, the one question which determines this appeal is the status of the defendants which has been held to be that of non-occupancy raiyats by the learned Deputy Commissioner. If that conclusion of law is correct then the question might arise as to the conflict between two decisions of this Court, viz. 2 Pat 7461 and the other reported in 7 Pat 675.2 In the former the learned Chief Justice in delivering the judgment of the Court contented himself in coming to the conclusion that, as the tenants in that case were held to be non-occupancy raiyats, the Munsif had no jurisdiction to entertain the suit and that the only ground upon which they could be ejected was the ground set out in Section 41 of the Chota Nagpur Tenancy Act. In the later case Mulliok and Kulwant Sahay JJ. in a case in which the tenants had been inducted upon the land by a registered document, held that the case came under S. 41(d) but the right of action of the plaintiff was the right of action under the general law and that the case was not one of those cases contemplated by the various sub-sections of Section 139 of the Chota Nagpur Tenancy Act. If we were to come to the conclusion in this case that the defendants had non-occupancy rights, it might be necessary to come to a decision whether this case should not be referred to a Full Bench for the purpose of considering the two cases to which I have referred and which are in apparent conflict. But in my judgment no such difficulty arises and the matter is determined on one or two very simple considerations. A large number of authorities have been quoted but mostly on the one question namely what were the rights of one of the co-sharers in inducting the defendants on the land, and what was the result of such a settlement. It is contended by Mr. De on behalf of the defendant-respondents that one co-sharer is entitled, in the ordinary course of management of the property, to settle tenants upon the land and that such a settlement results in on-occupancy rights coming into existence. That, if I do not misunderstand Mr. De, is the argument shortly stated, and in that connexion the two authorities of the Calcutta High Court were relied upon. The first is a Full Bench decision in 20 Cal 7083 and the other is the case in 25 Cal 324.4 The decision of the Full Bench in the former case is correctly stated by the head-note to the following effect:

A person having, previously to the passing of the Bengal Tenancy Act, been settled on certain land as a ryot and tenant by a trespasser, and having acquired no right of occupancy at the time of suit brought, was sued in ejectment by the true owner.

4. It was held that such a person was a non-occupancy ryot within the meaning of Section 5, sub-section 2 of the Bengal Tenancy Act, and that he was protected from ejectment by that Act. In the latter case defendants 2 and 3 had inducted defendant 1 upon the land. The other co-sharer with defendants 2 and 3 was the plaintiff. The plaintiff in the suit out of which the appeal arose, brought an action against defendant 1 and inter alia pleaded that defendant 1 was a trespasser having been inducted upon the land by defendants 2 and 3, the plaintiff's co-sharers. One of the pleas of the defendant was that the payment by him to defendants 2 and 3 discharged him from any liability as regards the rent. Banerjee, J. in the course of his judgment in that case pointed out that at the time when the settlement was made by the plaintiff's co-sharers, the co-sharers were the de facto proprietors or owners of the whole land, and the fact that their rights were subsequently questioned and found not to exist made no difference to the position. It was in this connexion that Mr. De contended that from the facts of this case it was to be inferred that the co-sharer who settled the land with his clients (the defendants), settled the land on behalf of all the co-sharers. I am not correctly representing Mr. De's argument when I say that the inference must be drawn, but he contends that the facts in the present case establish that proposition. In my judgment, as I have already stated, the argument is unfounded. The facts as found show conclusively that the settlement was by one of the co-sharers alone. Were it the law that one co-sharer, to the exclusion of and against the will of the other co-sharers, could settle a holding with a tenant, in my judgment a great inroad in the law of landlord and tenant could be made. Mr. De appears to appreciate the position which would arise by the contention to which I have already referred. Now is those circumstances we come back to the Act, and the definition clauses.

5. In S. 3(xii) a holding is defined as meaning “a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy”. It was pointed out by my learned brother in the course of the argument that a similar clause in the Bengal Tenancy Act so far as it applies to Bengal has been amended. That clause provides that a holding means a parcel or parcels of land or undivided right of an under raiyat forming the subject of a separate tenancy. The only relevance of my reference to that clause of the Bengal Tenancy Act is that in my judgment it is to be inferred in the case of the Chota Nagpur Tenancy Act that a holding cannot mean an undivided share therein. Then we come to S. 4 which describes the classes of tenants. As regards raiyats, they are occupancy raiyats and non-occupancy raiyats under Cl. 2(a) and (b) of S. 4. Non occupancy raiyats are raiyats “not having such a right of occupancy”, Under S. 6:

Raiyat means primarily a person who has acquired a right to hold land for the purpose of cultivating it be himself, or by members of his family, or by hired servants, or with the aid of partners.

6. Taking those provisions together, it seems to me that the irresistible conclusion is that the Legislature indicated that non-occupancy rights could arise only in the case of a holding which means “parcel or parcels of land” which is the subject matter of a separate tenancy. In my judgment it is impossible to apply those provisions of the Act to the facts of this case. This interest which the defendants possessed was an undivided share in the holding in dispute. That being so it seems to me that the decision of the learned Judge in this connexion that the defendants were non-occupancy raiyats was erroneous. Now, if the defendants are not non-occupancy raiyats, they do not come within the mischief of S. 41 and it is not necessary therefore to find in this case any of the conditions laid down in that section for the purpose of holding that the plaintiff is entitled to succeed; in other words, as the defendants are not non-occupancy raiyats, the plaintiff is entitled to eject them. It was contended by Mr. De, towards the end of his argument, that all that had been granted to the plaintiff under his lease was a right to damages or a right as against the defendants as trespassers. Personally I fail to understand that argument. Although the plaintiff describes the defendants as trespassers (and necessarily he must do so), his claim is not in trespass; his claim is for the possession of the land and in other words for ejecting the defendants. Had the claim been in trespass, which would mean that the plaintiff was claiming damages, then in so far as the right to damages arose before the interest of the plaintiff came into existence, I am of opinion that the argument of Mr. De would have been well-founded. It would be a cause of action which was not assign, able. But that is not the case. The plaintiff came into possession under his lease, he found the defendants on the land, and unless they could show some rights which would entitle them to stay there, the plaintiff must succeed in the action. In my judgment he succeeds in this action because the defendants have failed to show that they are in law non-occupancy raiyats.

7. I have already stated that the learned Deputy Commissioner in the Court below also concluded that the action was barred by limitation, and Mr. De contends that the plaintiff here failed to show that he was in possession within 12 years. It is an argument which in my judgment finds no support from the admitted facts of this case. The plaintiff truly was not in possession. He brought the action immediately after he had obtained the thica lease. The question arises whether his predecessor in title was in possession. The predecessor in title of the plaintiff was the zamindar and not the former thicadar. Mr. De contends that as the zamindar was in khas possession, he was therefore not in possession within 12 years within the meaning of Article 142, Limitation Act, an argument which cannot be supported either on authority or in principle. The zamindar was first of all in possession by the thicadar and the thicadar was in possession by the defendant respondents.

8. It is said by Mr. De that there is no finding as to what the position was before 1332 when the co-sharer settled the land with the clients. The position before 1332 is quite immaterial. The fact is that in 1332, the defendants became tenants of one of the co-sharers and whether they were prescribing against the landlord before 1332 or not makes no difference. Once they occupied the position of the tenants, there was an end of the matter. The fact that the plaintiff has not established his own possession therefore, in the circumstances is irrelevant. In my judgment the learned Deputy Commissioner was equally wrong in coming to the conclusion that the action was barred by limitation. It is quite clear that the question of whether the jurisdiction of this Court is ousted does not arise having regard to the conclusion I have arrived at that the defendants are not non-occupancy raiyats. For those reasons I would set aside the decision of the learned Deputy Commissioner and allow the appeal with Costs throughout.

Manohar Lall, J.:— I agree that the appeal should be allowed with costs but I would like to make a few observations. Upon the facts found in this case, it is clear that the defendants acquired no non-occupancy rights in respect of the land in suit at any time. They came upon the land by means of an unregistered lease of 1332 F., executed in their favour by Badbika Prasad, a co-sharer tbicadar from the Raja. This settlement was without the consent of Badhika's co-sharer, Gopal Saran, who having instituted a suit in 1334F, obtained a decree for joint possession with the respondent to the extent of his half-share. The defendants thereupon held valid title to remain in possession of an undivided share in the land in suit though upon the findings they were in actual physical possession of the entire land. Upon the expiry of their term in 1336 F. (when the thicadar's right also expired) their right to hold this undivided share also came to an end and from that moment they became trespassers of the entire land and hence liable to be ejected by the original owner or by any person who held valid title from that owner. The plaintiffs obtained such valid title by reason of their getting a settlement of the suit land from the Raja on 7th October 1931; it follows in my opinion that there can be no answer to the case raised by the plaintiffs. It was contended by Mr. De however that the defendants to this suit having obtained a settlement of the entire land from one co-sharer, are protected from ejectment by reason of the rule enunciated in the well-known case in 20 Cal 708. It is enough to say that this defence was never pleaded in the written statement nor was any evidence led to establish the facts which would enable the defendants to take advantage of that rule and therefore necessarily there is no finding of the final Court of fact to enable me to apply this rule in the present case. Upon these findings the present suit is a simple suit for ejectment governed by the general law and none of the provisions of the Chota Nagpur Tenancy Act apply.

K.S/R.K

9. Appeal allowed.