1. This appeal arises out of a suit brought by the plaintiff-appellant for ejectment of the defendant and for possession of a room and dalan, said to be in the occupation of the defendant. The house is alleged to be an endowed property dedicated to the idol, in whose name the present suit has been brought by the surviving trustee, Mt. Gangamani Debi. It was originally purchased in the name of Mts. Gangamani Debi and Kumudamani Debi the two wives of Chintamani Chakrabarty, The two ladies created the endowment and installed the plaintiff idol in part of the house. Mt. Kumudamoni has since died, leaving two sons. Tincauri Chakrabarty and Panchcauri Chakrabarty., Gangamani Debi, through whom the present suit has been brought in the name of the idol, is apparently on bad terms with her stepsons. Under the deed of endowment she is the sole surviving trustee after the death of Kumudamani, Debi. The defendant respondent has admittedly no interest in the house., The suit for ejectment was based on the allegation that the defendant was a tenant at a certain monthly rent. By a subsequent amendment the character of the suit was slightly, modified by treating her in the alternative as mere licensee.
2. The defence was that the defendant was neither tenant nor in any manner holding permissibly from the plaintiff. It was alleged that the defendant was brought into the house by Kumudamani Debi, on whom she attended, that after the death of Kumudamani Debi Tincauri Chakrabarty who is residing in the house, allowed her to stay and that she is living with him as a member of his family.
3. The Court of first instance decreed the suit. The lower appellate Court has, however, dismissed it on the finding that the defendant is neither the tenant nor the licensee of the plaintiff but is living in part of the house in the actual occupation of Tincauri Chakrabarty. The finding may be usefully quoted. It runs thus:
I havs been taken through the entire evidence on the record and 1 have no hesitation in saying that she was asked to live in this, house as a servant. It appears that Mt, Gangamani and her stepson, Tincauri, have fallen out. The appellant is now living with Tincauri, who is occupying the ground floor of the house. No specific portion of the house is in the possession of the appellant but that she is living as a servant with Tincauri. Therefore she has no independent light to live in the house either as a tenant or a licensee (which she is not). She is there with the permission of Tincauri and is living in the portion of the house which he himself is occupying. This is proved beyond doubt.
4. In my opinion this finding, if accepted will disentitle the plaintiff to a relief. Tincauri is in possession of the lower story either as a trespasser or with the permission of the plaintiff., assuming the latter is the owner of the lower story. In either case the person in actual possession is Tincauri.? The members of his family, his servants and retainers, though living with him cannot be considered to be in possession of the house. The proposition that a plaintiff can eject any of his servants, wife or relative, without impleading him as a defendant, is an impossible one. Possession wrongful or otherwise implies something more than physical presence of a person. I am of opinion that the view taken by the lower appellate Court in dismissing the plaintiffs's suit is correct. This appeal cannot succeed. It is accordingly dismissed.
5. As the defendant contested the validity of the wakf and the same having been given effect to a plea which has been found to be groundless, I order that the parties should bear their own costs of the first two Courts. The respondent will have his costs of this appeal.