1. This appeal arises out of a suit for joint possession of certain plots of cultivated land and for the ejectment of defendant 1. Plaintiffs and defendants 2 and 3 are zamindars and co-sharers of the mahal in which the property is situated. The plots in suit formed the occupancy holding of one Sarajnath Singh, who died in the year 1912 leaving no heirs entitled to succeed to his interests. The occupancy holding, therefore, lapsed or escheated to the zamindars. On the death of Surajnath Singh one of the co-sharers namely Ramdhari Singh, took the holding in his cultivatory possession and cultivated it for two years as his khudkasht. On 10th July 1914, Ramdhari Singh executed a perpetual lease of the land in suit in favour of defendant 1, fixing an annual rent and taking a premium of Rs. 300.
2. The plaintiffs claim that the perpetual lease is invalid and null and void as against them. They claim that they have-been ousted from joint possession owing to the action of Ramdhari Singh in granting this perpetual lease without their consent and they claim to be put into joint possession of the holding by the ejectment of defendant 1.
3. The defence was that although plaintiffs and defendants 2 and 3 (who are the sons of Ramdhari Singh) are cosharers in an undivided mahal, nevertheless there has been a division of the holdings between the cosharers and that Ramdhari Singh has by mutual arrangement with the plaintiffs been exclusively realizing the rent of the deceased occupancy tenant. They claim that he was entitled to execute the lease on his own authority without the consent of the plaintiffs.
4. The Court of first instance found against the defendants that there was no division of the tenant's holdings and that Surajnath Singh was the tenant not only of Ramdhari Singh but of all the cosharers including the plaintiffs. This finding was confirmed by the lower appellate Court and is now final. The position is, therefore, that Surajnath Singh was a tenant of all the co-sharers in the mahal. In these circumstances, it was not open to Ramdhari Singh as one of the cosharers to execute a lease of the holding on his own authority and without the consent of his other cosharers. The law on this point is clearly stated in Section 194, Sub-section (i), Agra Tenancy Act 1901. Ramdhari Singh could not validly execute the lease unless he did so as an agent of the other cosharers. It has never been the defendants' case that he acted as the agent of the plaintiffs. Moreover the lease itself shows that Ramdhari Singh purported to be the sole owner of the land and to be acting on his own authority only.
5. It is true that Ramdhari Singh cultivated the land as his khudkasht for about two years before he executed the lease in question. In my opinion, this does not affect the position. As soon as he leased the land to a tenant for cultivation the land ceased to be khudkasht. The ruling relied upon by the learned Counsel for the respondent in Sarabjit Singh v. Raj Kumar Rai A.I.R. 1922 All. 162. does not apply to the present case but only applies to a case where a cosharer is actually cultivating land as his khudkasht.
6. I think it is clear that Ramdhari Singh in executing the lease without the consent of the cosharers and without the authority of any local custom or special contract acted in contravention of Section 194, Agra Tenancy Act 1901 and, therefore the lease is invalid and is of no effect as against the plaintiffs. I may also hold that even a lambardar has no authority to bind the cosharers whom he represents by granting a perpetual lease.
7. It has been urged for the respondent that although the lease may be legally invalid nevertheless the plaintiffs cannot obtain the relief of joint possession without having the lease cancelled and a suit for cancellation is now barred under Article 91, Lim. Act. It is true that a suit for cancellation of the lease would be barred under that article but the suit was not framed for the purpose of having the lease cancelled. This is one of the reliefs claimed. Moreover I think it is possible to grant the plaintiffs a decree for joint possession without setting aside invalid lease simply on the ground that the lease is not binding upon them.
8. For these reasons I allow the appeal and restore the decree of the Court of first instance. The appellants will get their costs in all Courts.