1. This is a plaintiff's appeal arising out of a suit for ejectment and damages under Section 40, Agra Tenancy Act. The parties are cosharers in a certain mahal, and the plaintiff claims to be the lambardar. He seeks to eject Mohammad Khan and Jalaluddin from certain plots which once, according to the averments of the parties, was a grove. On 13th September 1934, Mohammad Khan sold his share in the mahal to the plaintiff Sultan Ahmad Khan. He exempted from sale the aforementioned grove. In that grove as a cosharer Mohammad Khan had a share along with the other cosharers. In 1935, according to the averments of the plaintiff, Mohammad Khan cut down the trees of the grove and then allowed the defendant Jalaluddin to enter into possession of the land. In these circumstances the plaintiff as lambardar and zamindar instituted the suit out of which this appeal arises for the ejectment of the defendants. A number of questions have been raised during the hearing of this appeal, including the question of jurisdiction of the District Judge to entertain the appeal to his Court. In the view of the case we take however it is not necessary to decide these questions.
2. In our judgment the suit is misconceived. According to the plaintiff's own averments, Jalaluddin and Mohammad Khan, defendants, are both cosharers. It is clear in our judgment that the plaintiff, Sultan Ahmad Khan, is not entitled to eject cosharers under Section 44, Agra Tenancy Act. Learned counsel for the plaintiff maintained that a suit for ejectment of a cosharer was competent, and he relied on the decision of the Revenue Court in Sri Ram Chanderji v. Raghunath (1929) 13 RD 426. In that case the Board of Revenue held that the lambardar of a village was a 'landholder,' as that term had been defined in the Agra Tenancy Act, and that he was entitled to eject a cosharer as a trespasser. In the course of the judgment of the Board it was observed:
The lambardar is the 'landholder,' and the Section says that a person taking possession of land without the consent of the landholder and in contravention of the provisions of this Act shall be liable to ejectment.
3. 'Landholder' however has been defined in Section 3, Agra Tenancy Act, as 'the person to whom rent is, or but for a contract, express or implied, would be payable.' The rent of the particular plot in question is payable to the cosharers of the mahal. It is not payable to the lambardar as lambardar. It is true that the lambardar is entitled to collect rents; but it is to the cosharers that the rent is payable. Under Section 44, Agra Tenancy Act, a trespasser may be ejected. In no sense of the term can the defendants in this suit be regarded as trespassers. They are both cosharers. They are entitled to joint possession at least, of the plot in question in the absence of any agreement with the other cosharers. They cannot therefore be ejected under Section 44. If one cosharer is recalcitrant and takes possession of a particular plot in defiance of the wishes of the lambardar and the other cosharers, their remedy is not by way of a suit for ejectment under Section 44, but by way of a suit for joint possession or for partition. In the result the appeal is dismissed with costs.