R.S. Broomfield, Ag. C.J.
1. The appellant in this Letters Patent Appeal was the plaintiff in the original suit. He is an inamdar of the village of Kudave. It appears that there are some co-sharers in the inam. He brought a suit for a declaration that he is the owner of certain land, and to recover possession of the land in case it should be found that it is in the possession of the defendants. The land in suit consists of three plots which have been described as plots W, X and Y. We are no longer concerned with plot W as the plaintiff's claim to that was disallowed and he did not take cross-objections in the appeal before Mr. Justice Macklin. As regards the other two plots X and Y, it has been held that they were leased to the defendants by the plaintiff in 1898 and the following years, that there was a lease in 1909 for five years and that after 1914 the defendants ceased to be tenants. They claimed to have acquired ownership by adverse possession, but the lower Courts have held adverse possession not proved. In fact they have found that the plaintiff was himself in possession of these plots X and Y at the date of the suit, so that no order for possession had to be made. The decree made was that the defendants are restrained from making obstruction to the plaintiff in his possession of these plots.
2. The decree of the trial Court having been confirmed on appeal by the Assistant Judge, there was a second appeal which was heard by Mr. Justice Macklin. He allowed an objection which had been taken in the Courts below but disallowed there, namely, that the plaintiff's suit was not maintainable without joining his co-sharers in the inam as parties. Reliance was placed on Vagha v. Manilal (1934) 37 Bom. L.R. 249 Balkrishna v. Moro I.L.R. (1896) Bom. 154 and other cases cited in those decisions in which it has been held that where the landlord's rights belong jointly to several persons, a suit to eject a tenant can be instituted only by all the co-owners suing jointly as plaintiffs. But the rule relied on by Mr. Justice Macklin only applies where there is a subsisting relationship of landlord and tenant. The cases were discussed in Maganlal Dulabhdas v. Budhar Purshottam I.L.R. (1926) Bom. 149 : 29 Bom. L.R. 222 and it was held that where a tenancy is entered into for a fixed term with co-owners of property, and the tenant continues on sufferance after the expiration of the period of the tenancy, a suit brought to eject the tenant by one only of the co-owners is maintainable. Mr. Justice Shah, who delivered the judgment in this case, pointed out that the position of a tenant on sufferance is akin to that of a trespasser, and a co-owner can maintain an action to eject a trespasser who has been holding over wrongfully as decided in Shutari v. The Magnesite Syndicate, Ltd I.L.R (1915) Mad. 501
3. The plaintiff did not allege in this case that the defendants were his tenants. The defendants did not allege, so far as plots X and Y are concerned at any rate, that they were the tenants of the plaintiff. They claimed to have acquired title to the land by adverse possession. The evidence established that they were the plaintiff's tenants at one time, but the tenancy expired in 1914. The land in question is warkas land in which it is hardly possible to exercise possession by any overt act. It seems to be doubtful, therefore, whether the defendants ever had what can properly be described as possession after 1914. As I have mentioned, the Courts below found as a fact that at the date of the suit the plaintiff was in possession. Assuming that the defendants had some sort of possession for a time after 1914, they had it not as tenants but as tenants on sufferance. Even if they had possession of that nature at the time of the suit, the rule referred to by Mr. Justice Macklin would not apply. The learned Judge was, in our opinion, wrong in allowing the appeal on this ground.
4. The learned advocate, who appears for the respondents before us, urged that apart from the ground on which the plaintiff's suit was dismissed in the second appeal, it ought to be dismissed as barred by limitation under Article 139 which fixes a period of twelve years for a suit by a landlord to recover possession from a tenant, time running from the date when the tenancy is determined. Mr. Madbhavi argues that a suit ought to have been brought within twelve years from 1914 when the tenancy of the plots X and Y was determined. This particular point of limitation has not been taken in any of the Courts below. Limitation was pleaded but the plea was based on the defendants' alleged adverse possession of the land for twelve years. Apart from that point, however, it is impossible to argue that the plaintiff's suit is barred in view of the findings of the Courts of fact that he was actually in possession of the land at the date of the suit. That being so, it can make no possible difference whether a suit by him to recover possession would be barred or not. Under the circumstances it is not necessary for him to claim to recover possession at all.
5. We must allow the appeal and set aside the decree of Mr. Justice Macklin.
6. The decrees of the District Court and the trial Court are confirmed. Respondents must pay the costs of this appeal.