1. The defendants Nos. 1 and 2 granted to the plaintiff a lease for sixteen years on the 5th of June 1889, of an occupancy holding. On the next day the plaintiff granted a sub-lease for sixteen years to the defendants Nos. 3 and 4, who are brothers of the defendants Nos. 1 and 2, for the same land. The net result of these leases was that the plaintiff was to benefit to the extent of about Rs. 100 per annum for sixteen years.
2. The transaction appears to have been one of mortgage, though the parties have not directly stated this fact. Perhaps they thought that a mortgage of an occupancy holding would be held invalid by the Court, and so thought it better to draw up the two leases already mentioned. The plaintiff alleged that defendants Nos. 3 and 4 paid rent regularly till 1297 Fasli. They defaulted in 1298 and 1299 Fasli. The plaintiff distrained the crops. The defendants Nos. 1 and 2 filed an objection claiming the crops as their own and denying the plaintiff's title. The Revenue Court released the crops in favour of the defendants Nos. 1 and 2. The plaintiff sues for possession of the holding alleging that the defendants Nos. 3 and 4 are in collusion with the defendants Nos. 1 and 2. The Court of First Instance found that the Civil Court had no jurisdiction that the lease was a valid document that the plaintiff was entitled to possession of the land. The defendants did not press any argument on this latter point. The Court of First Appeal found that the Civil Court had jurisdiction and remanded the case for disposal on the merits.
3. The defendants appealed to this Court urging (1) that the suit was triable exclusively by the Revenue Court, and (2); that the remand should not have been made and the decree of the first Court should have been affirmed.
4. In the course of the hearing a question arose which has been referred to the Full Bench it is as follows:
Assuming for present purposes that the defendants Nos. 1 and 2 have, either with or without collusion with the defendants Nos. 3 and 4, entered into possession of the lands, the subject of the zar-i-peshgi lease mortgage, without the consent of the plaintiff, that mortgage being still in existence, what is the decree which the plaintiff is entitled in a Civil Court to obtain against defendants Nos. 1 and 2. Is it a decree in ejectment for possession of the mortgaged lauds or is it a decree for a declaration of title
5. The suggestion in this case is that the plaintiff having granted a sub-letse for sixteen years is thereby debarred from suing for possession against his lessors, even though the lessors may have ejected the sub-lessees. The same principle would apply even if the land were held by year to year tenants.
6. The principle comes to this, that no suit for ejectment and possession of land can be brought unless the plaintiff was the actual cultivator at the time of ejectment; if he was not, his only remedy is to sue for rent against his tenants. As long as they pay, he has no other remedy, and must leave the trespasser in possession; if his tenants fail to pay, he can eject them according to law, and then he will have a cause of action against the trespasser, but not till then.
7. I may remark in commencing that that is not the view of the law taken by the parties in this case. The plaintiff alleged a cause of action for recovery of possession. The defendants did not press any argument against this view. There was in fact no proposition of law put forward by the defendants, such as that now raised.
8. The appellant has not explained the policy on which the suggested rule is founded, or the reason why a tenant should voluntarily or involuntarily let into possession a person denying the landlord's title, fail himself to enforce the landlord's possession, and then be permitted to debar the landlord from doing so, or how a suit by the landlord to eject a trespasser and replace the tenant can in any way injure the tenant's rights under a tenancy which has not been forfeited by the tenant's conduct.
9. The principle now suggested may be that followed in England but I think it is new to India. The action of ejectment in England was only rendered possible by the adoption of the most extraordinary string of legal fictions that any system of law can produce. I mean that connected with the names of John Doe and Richard Roe.
10. The Civil Courts have been in existence in India for more than a hundred years. To the best of my belief they have managed to decree possession of land during that time without impleading John Doe and Richard Roe, and 1 think that the action for recovery of land in India has a history and a character of its own, and that it is not bound by the highly technical rules prevailing in England regarding actions at law on the tenure of land.
11. There can be no doubt that the Courts in this country decree possession of land in ejectment to a landowner, notwithstanding the fact that the land is held by tenants of different classes. The law has been uniformly administered in this manner and in no other, as far as my memory serves me.
12. I can see no mischief requiring a remedy in the present practice. The real dispute is rapidly brought to an issue, the contending parties are joined those not interested are not harassed by being made parties. The decree is easily enforced and is intelligible by the Revenue authorities in amending the record of rights. I can see no reason for introducing any new system, and I should regret to see the law which is well established and well understood by the people subverted unless some very good reason for so doing can be put forward.
13. Assuming, however, that the principle suggested is the correct one, it may be worth notice to see how it would work in practice. Take the case of a landowner dispossessed from a property in which there are fifty tenants. He must first bring fifty suits under the Bent Act. The trespasser will intervene under Section 148, Rent Act. The intervener succeeds. The landowner will then institute fifty suits in the Civil Court, and if he succeeds he gains by a hundred suits exactly what he now gains by one. The costs of processes and legal expenses are needlessly increased; a large number of tenants who have no interest in the matter are harassed for no good reason. The main interest of the tenant is to learn as quickly as possible whom it is that the Court decides to be the legal successor of his former landlord, and to whom he can with safety pay his rent. Supposing 5 per cent, of the tenants desire to contest the plaintiff's claim, they can do so after a decree for possession. That course is preferable to making 95 per cent, of the tenants parties to a litigation they have no desire to join in.
14. Such decrees when obtained do not appear to be capable of being readily used for amending the record of rights. If the principle suggested is the correct one, I think there would be no difficulty in depriving a landlord of his land in twelve years in collusion with the tenant. The trespasser can enter and claim adverse possession. The rent can be paid for twelve years. The tenant can then go on a pilgrimage. The land becomes the property of the trespasser. The land may be worth twenty-four years' purchase but the landowner's only remedy is a personal one against a tenant who may abscond or become insolvent.
15. In England the tenant is bound under penalty to give notice to his landlord when served with an ejectment. I know of no law in these Provinces calculated to check collusion on the part of the tenant.
16. As I understand the Civil Law the possessor of land did not lose possession by letting the land to a tenant. He retained possession and alibis legal remedies. So far as possession consisted in bodily acts, the acts might be those of some other person. So far as it consisted of mental acts, the mind was that of the possessor, the dispossession of the tenant dispossessed the landlord. The idea that that can be no possession or dispossession of land except that of the person who walks over it or ploughs it with his bullocks seems to be rather a primitive one, not sanctioned by the Civil Law. I fail to see that a landowner who lets his land out to a tenant for cultivation, thereby covenants with the tenant that he will not resist a rival landowner who takes possession, or that he makes the tenant his agent for the purposes of resisting his rival, with power to resist or not as he thinks proper. Landlords in this country are the very last people who would enter into any such covenants.
17. In this country when a tenant is ejected by a trespasser the landlord has an implied right of entry in order to recover possession for himself and his tenant.
18. The matter is not governed by covenants, but by custom. Local usage is a better guide to the incidents of a tenancy than analogies drawn from English Law.
19. I understand local usage to be that when a tenant is ejected by a trespasser he is not bound to sue him, but he is bound to inform his landlord and to do nothing to hinder the landlord from recovering possession.
20. The landlord can recover possession from the trespasser and must readmit the tenant if the tenancy subsists. It the tenant has forfeited his holding by collusion or otherwise the landlord can also eject the tenant. The tenant, who is the custodian of the landlord's possession and who forfeits his tenancy by any voluntary act directed against the landlord's possession, has under this usage no opportunity of aiding a trespasser by using his term, not in his own but in the trespasser's favour, against the landlord. If the ejected tenant has-not colluded with the trespasser, I cannot understand his objecting to the landlord's suit. If he has colluded, he has thereby forfeited his tenancy. In the present case the plaintiff alleges that the sub-lessees are hi collusion with his lessors; he therefore made them co-defendants. Collusion, if proved, forfeits the tenancy. The sub-lessees did not appear to contest the claim it is admitted that they might have appeared and asked to be joined as plaintiffs seeking to have the original lessors ejected from the holding: they have not done so. They could only do so by denying the truth of the defence put forward by their brothers, the defendants Nos. 1 and 2, which perhaps they are unwilling to do. Defendants Nos. 3 and 4 have made no defence either in fact or in law to the plaintiff's claim. Defendants Nos. 1 and 2 have made a defence only on propositions of fact. It is to be observed that defendants Nos. 1 and 2 do not claim under defendants Nos 3 and 4. They deny their title as well as that of the plaintiff. Defendants Nos. 1 and 2 are in possession adversely to defendants Nos. 3 and 4. Defendants Nos. land 2 have no title of their own against the plaintiff. I do not see bow they can defend their possession by putting forward the title of defendants Nos. 3 and 4, the existence of which they deny; a title which defendants Nos. 3 and 4, though parties to the case, do not put forward themselves in answer to the plaintiff's claim a title which, if vindicated at all, is consistent with the plaintiff's case and destructive of the title of the defendants Nos. 1 and 2. If the appellants' argument is correct, in none of the cases for possession of land decreed by the highest courts can there have been any outstanding term, or tenancy from year to year, or the suit would have failed. I cannot accept this view. I would answer the question by saying that if the plaintiff succeeds he is entitled to a decree for delivery of the property leased to him and for the removal of the defendants Nos. 1 and 2 therefrom, but that the defendants Nos. 3 and 4 are not bound under the decree to vacate the same. I regret that my view is not in accordance with that of my learned colleagues.
21. In this suit the plaintiff made four persons defendants. The defendants Nos. 1 and 2 had on the 5th of June 1889, granted a zar-i-peshgi lease to the plaintiff for a term of sixteen years of their occupancy holding. A zar-i-peshgi lease is a mortgage. Subsequently to the granting of that lease the plaintiff granted a lease to the defendants Nos. 3 and 4 for a term to expire one day before the expiration of his own term. After some years had elapsed the defendants Nos. 3 and 4 made default in payment of rent to the plaintiff. Thereupon the plaintiff distrained the orops on the ground, and the defendants Nos. 1 and 2, who were in law and in fact the mortgagors, the grantors of the zar-i-peshgi lease, intervened and claimed the crops as theirs. The Court of Revenue, misapplying the law, decided the question in favour of the defendants Nos. 1 and 2. On that the plaintiff brought the present suit. In the present suit he asked as his first relief that the defendants be dispossessed of 40 bighas odd, that being the extent of the land which was granted to them as zar-i-peshgi mortgagee, and that ha, the plaintiff, be put into possession of that land.
22. The Division Bench rightly came to the conclusion that, as the tenancy created by the plaintiff in favour of the defendants Nos. 3 and 4 had not been determined by surrender or by process of law it was still subsisting, and could only be determined by proceedings in a Court of Revenue, and not in a Civil Court. There remained the question as to what was the decree to which the plaintiff was entitled as against the defendants Nos. 1 and 2, who were the grantors to him of the zar-i-peshgi lease mortgage. Now there is no doubt that what the plaintiff asked for in his suit was a decree for Khas possession that is, not merely a decree declaring his title or decreeing his possession as mortgagee subject to the lease granted by him, but a decree under which he should be placed in actual physical possession of the lands. That decree in my opinion the plaintiff was not entitled to get. The plaintiff had himself, before this suit was filed, parted with the actual or physical possession of the lands to defendants Nos. 3 and 4, to whom he had granted a lease of those lands. That lease and the term created by it had not been determined, and the plaintiff cannot be entitled to the physical possession of lands, the possession of which he had granted to another under a lease which is still current. A landlord can no doubt be correctly said to be in possession of his property through his tenants, but that is not such a possession as entitles him to enter upon the lands, or to cultivate them, or to treat his tenants and those holding under them as trespassers.
23. We are instructed by the Privy Council, and are bound to obey their instruction, that when we do not find law in India applicable to the case before us, we are to follow the principles of the law of England so far as they are applicable. The law of England on this point is consistent with common sense, notwithstanding that some of the earlier procedure in ejectment is now out of date. Suffice it to say that John Doe and Richard Roe have not been necessary parties to actions in ojectment in England for a great many years. The principle of the law was always the same, although the procedure which required John Doe and Richard Roe was necessary at one time, and is not necessary now. The principle, it appears to me, must be the same all the world over, and certainly must he the same in India as in England. That principle is that where a man, whether the owner or merely a tenant, creates a tenancy under him which entitles the tenant to the exclusive use of the land or of the house, as it may be, the man creating the tenancy cannot have any right to actual possession, unless he has by the lease or by agreement with his tenant reserved to himself a right to re-enter and take possession. He has of course a right by due process of law, if the facts arise, to have the tenancy created by him determined and his tenant ejected; hut, so long as the tenant is entitled to possession, the landlord cannot be entitled to possession. That right to possession he has parted with by the creation of the tenancy. It is no new proposition of law, and the application of that proposition of law, which I believe to be correct, does not introduce into India any new system either of law or of procedure. A landlord whose title is denied by his tenant has got a right to have the tenancy determined. A landlord whose title is questioned by anyone else than the tenant has gob a right to a declaration under Section 42 of the Specific Relief Act; and if any one enters on the receipt of the rents and profits of the land and takes from his tenants the rents which were due to him, he is entitled as against such person, not only to a declaratory decree declaring his title and that the other person has no title, but to a decree putting him into possession, that is, what is known as formal possession, as contradistinguished from actual or khas possession, of the lands as against the person wrongfully taking the rents and profits to which he, the landlord, is entitled. It is an error to consider that any new system of procedure is required. Section 263 of the Code of Civil Procedure provides for the delivery of khas possession when the plaintiff is entitled to be put into actual possession as against the defendant. The Legislature in enacting Section 263 of the Code must have been aware that if they stopped there they would not have provided for a case such as this, in which the plaintiff, by reason of an outstanding term in a tenant, is not entitled to have his decree executed by being put into khas possession. Accordingly the Legislature, not intending to introduce any new system of procedure and intending to give plaintiffs who succeeded in suits like this an opportunity of obtaining the qualified possession to which they were entitled, enacted Section 264 of the Code. That is a section under which, for example, a plaintiff who has been dispossessed of the rents and profits of his tenants, but who, by reason of their being tenants in with a lawful title, is not entitled to be put into actual khan possession, is enabled to he put into that possession of his zamindari, his tenancy, or whatever it may be, of which he has been deprived by the defendant. The procedure under Section 264 does not require fifty, sixty or a hundred defendants to the suit, and it certainly does not require that any of the plaintiff's tenants or any of the tenants who derive title from the plaintiff or from his predecessors in title should be made defendants to the suit. To bring Section 264 into operation it is only necessary that the plaintiff should have as the defendant or defendants to the suit the man or men who have dispossessed him of the receipt of the rents and profits. When a plaintiff has no outstanding term against him, such as an existing tenancy created by himself or his predecessor in title, he can obtain his decree for khas possession, and that decree can be executed under Section 263; and what is more, he can have as defendants to that suit all persons who are in possession of his lands and are conjointly in collusion holding adversely to him, that is, not under a title granted by him or by his predecessor in title. When, however, there are in possession of the lands tenants holding under a title which the plaintiff cannot dispute, for example, a tenancy created by himself or his predecessor in title having title to create it, and some person has come in and deprived him of the rents and profits by getting his tenants be pay over the rents to some person other than the real landlord, the landlord's remedy in such case is distress for his rent or suit for arrears of rent, if the holding is an agricultural one suit for rent followed by ejectment if the arrears be not paid and suit against the outsider who has interfered with his rights for a declaration of his title and the want of title in the outsider and for possession as landlord to be delivered to him under Section 264 of the Code of Civil Procedure.
24. There is no one more averse than I am to the introduction of unknown and novel principles of law either into this country or into England, principles which have not been hallowed by the careful consideration of generations of lawyers. On the other hand, I think it is no light matter to depart from all known principles of law, and to suggest that a man, whether he be owner in fee in England or zamindar hero, or whether his title be that of a tenant, is entitled to be put into actual possession under Section 263 of the Code of Civil Procedure of lands, the right to occupy which and the exclusive possession of which he himself had granted to another for a term which is still current and not expired. If such a principle were introduced, it would revolutionize the principles of law by which tenants hold their houses, if the tenancy is of a house, and their lands, if the tenancy is of lands. No man is bound to create in favour of another a tenancy of his house or of his lands. If he does, he can by the use of proper words no doubt reserve a right to re-enter at any time and determine the tenancy, unless where notice or procedure in a Court is required in order to the determination of the tenancy. It may be, and indeed probably is, the fact that in the present case the defendants Nos. 3 and 4 are colluding with the defendants Nos. 1 and 2. The fact, if it be one, that there is such collusion, and even if such collusion be of the most fraudulent kind as against the landlord of the defendants Nos. 3 and 4, the plaintiff, does not entitle him to the possession of the holding until the tenancy created by him in favour of the defendants Nos. 3 and 4 has been determined. That tenancy the holding being an agricultural one to which Act No. XII of 1881 applies, can only be determined by proceedings in the Court of Revenue and, those proceedings not having been taken, it follows in law that at the commencement of this suit that term or tenancy was outstanding and was a bar to the plaintiff's obtaining khas possession of the lands.
25. In my opinion, and in the opinion of four other Judges of this Bench, the plaintiff is entitled to two decrees in this suit, viz., (1) a decree declaring that the plaintiff is the zar-i-peshgi lessee, mortgagee, of the defendants Nos. 1 and 2 of the occupancy holding under the zar-i-peshgi lease of the 5th of June 1889, and that the defendants Nos. 1 and 2 are not during the continuance of that mortgage entitled to interfere with the plaintiff's possession as zar-i-peshgi mortgagee, or to receive the rente and profits from any tenant or tenants of the plaintiff, or to do any act in denial of the plaintiff's title as zar-i-peshgi mortgagee and (2) a decree that the plaintiff be put into possession of the rents and profits of the occupancy holding as zar-i-peshgi mortgagee of the defendants Nos. 1 and 2 subject to the conditions of the zar-i-peshgi lease: the decree for possession to be executed under Section 264 of the Code of Civil Procedure: That is my opinion.
26. I concur fully in the reasons given by the learned Chief Justice, and in the answer which be would make to the questions referred to us.
27. I concur in the decree proposed by the learned Chief Justice as an answer to the reference, and in the reasoning on which that answer is based.
28. My answer to the reference is the same as that of the learned Chief Justice. The title of the plaintiff as zar-i-peshgi mortgagee having been denied by the defendants Nos. 1 and 2, he was entitled to claim a declaration of his title as against those defendants, and he was entitled to such possession as the nature of his title in the property admitted of. After he had granted a lease of the property to the defendants Nos. 3 and 4, and so long us that lease subsisted, the only possession which he could have in respect of the property was the receipt of rents and profits, and not actual physical possession of the property. So long as the lease in favour of the defendants Nos. 3 and 4 remained outstanding the only persons who were entitled to actual physical possession were these defendants. They were competent to allow anyone else to cultivate the lands unless the terms of their lease precluded them from so doing but in the absence of such terms the mere fact of their permitting a third person to cultivate the lands did not entitle the plaintiff to resume physical possession of them. If actual possession was taken during the currency of the lease by a trespasser, such a person would be a trespasser as against the tenants, and not as against the plaintiff, so as to justify the plaintiff in claiming the ejectment of the trespasser. If the paintiff's title was denied, he could certainly defend that title by claiming a declaration of his right; but, so long as he did not himself possess the right to enjoy physical possession, he could not eject the trespasser. I agree in the decree proposed.
29. I also agree in the decree proposed and in the reasoning upon which that decree is based. It appears to me that the difficulty experienced by my brother Blennerhassett, which has prevented him from concurring in the judgment of the majority of the Court, would disappear if the distinction between the two kinds of possession which has been pointed out by the learned Chief Justice, and which is recognized by the Legislature in Sections 263 and 264 of the Code of Civil Procedure, is borne in mind. If a person is wrongfully ousted from possession he is entitled to a decree replacing him in such possession as he had when his cause of action arose. If at that time he had a right to immediate, or what is called in this country Jchas, possession, then he is entitled to a decree replacing him in such possession. If on the other hand, his possession was only derived from the enjoyment of the rents and profits, then the possession to which he is entitled is that provided for by Section 264 of the Code.
30. With these opinions the case will go back to the Bench which made the reference.
31. On the appeal being again laid before the Division Bench which had made the reference, that Bench (Edgk, C.J., and Blennerhassett, J.), on the 11th June 1896, made a decree in accordance with the opinion of the majority of the Full Beech.