Iqbal Ahmad, J.
1. This is a defendant's appeal and arises out of a suit for ejectment filed by the plaintiff-respondents in the revenue Court under Section 58(a) read with Section 34, Agra Tenancy Act (Act-2 of 1901). The plaintiffs' case was that they were the occupancy tenants of the plots in dispute and the defendants were 'the sub-tenants without the consent of the plaintiffs' and the plaintiffs were entitled to a decree for ejectment of the defendant. In substance the plaintiffs' case was that the defendants had taken possession of their occupancy holding without their consent, and the plaintiffs were entitled, in view of the provisions of Section 34, Agra Tenancy Act, to treat them as tenants and to claim a decree for their ejectment. The defence to the suit was that the relationship of landholder and tenant did not exist between the.parties, and that the defendants were in possession as zemindars and the plots in dispute were their khudkasht. It was further alleged by the defendants that, even if the plaintiffs had occupancy rights in the plots in dispute, those rights were extinguished because the defendants had been in possession for a period of more than six months.
2. It is common ground that the plaintiffs have also acquired some zamindari share in the mahal in which the holding in dispute is situated. It is also admitted that one of the defendants, namely Surta, is the lambardar of the mahal, and the other defendant Suba is one of the cosharers. The trial Court held that the relationship of landholder and tenant did not subsist between the parties, and that plots in dispute were the khudkasht of the defendants and the plaintiffs having failed to bring a suit in accordance with the provisions of Section 79, Agra Tenancy Act, within six months of the date of dispossession by the defendants, the suit was time barred. On these findings that Court dismissed the plaintiffs suit.
3. The lower appellate Court has held that Surta dispossessed the plaintiffs from the holding in dispute not as lambardar, but 'in his private capacity' and as the two defendants were only some of the co-sharers of the mahal, Section 79, Agra Tenancy Act, had no application to the case. In support of this conclusion the lower appellate Court relied on the case of Chhedda v. Achha Singh A.I.R. 1924 All. 572. The view of law taken by the learned Judge is borne out by the decision quoted by him. Whatever may be my own View on the subject, I am bound by the ruling noted above, which is a case decided by a Division Bench of this Court,
4. In appeal before me it is argued that defendant 1 being a lambardar the dispossession of the plaintiffs by him was a dispossession by the 'landholder' within the meaning of Section 79, Tenancy Act, inasmuch as a lambardar-is the person who is entitled to realize the entire rent from the tenants and, as such, if a tenant, on being dispossessed by a lambardar, omits to sue for possession within six months, his occupancy rights are extinguished. I agree with the contention that, if a tenant is ejected by a lambardar otherwise than in accordance with the provisions of the Agra Tenancy Act, his remedy is by a suit under Section 79 of that Act. But in the present case it appears to me that it was open to the learned Judge of the lower appellate Court to hold that in ejecting the plaintiffs, Surta did not act as a lambardar, and ejected plaintiffs in his capacity of a co-sharer. The plea that defendant Surta ejected the plaintiffs as a lambardar was not taken in the written statement. Indeed, the written statement negatives the argument now advanced on behalf of Surta. If Surta had acted as a lambardar in ejecting the plaintiffs, it is difficult to understand why he joined hands with Suba, another co-sharer in the mahal. The allegation in the written statement is that both Surta and Suba are in possession of the disputed holding. It is clear that Suba could only be in possession in his capacity as a co-sharer, and, in the absence of anything to the contrary, it must be presumed that Surta's possession was in the same capacity as that of Suba. It is clear from the case of Chhedda that if a tenant is ejected by one of numerous co-sharers Section 79, Tenancy Act, has no application. Equally so, if a tenant is ejected by a person, who is not a co-sharer, Section 79, Tenancy Act does not apply. Section 79, Tenancy Act is limited in its application to cases of ejectment by the whole body of co-sharers or by the lambardar, who represents that body. If a lambardar and a person, who is not a co-sharer, jointly eject a tenant, obviously the remedy of the tenant will not be by a suit under Section 79, Tenancy Act, for the simple reason that the other person ejecting him jointly with the lambardar is not a 'landholder'. Therefore, if a lambardar, jointly with a co-sharer ejects a tenant otherwise than in accordance with the provisions of the Tenancy Act, the remedy of the tenant cannot be by a suit under Section 79 Tenancy Act.
5. The next point argued by Dr. Agarwala is that, if the plots in dispute were the khudkasht of the plaintiffs, their proper remedy was by a suit for partition and the present suit was not maintainable. The point now sought to be argued by Dr. Agarwala is entirely at variance with grounds 1 and 2 taken in the memorandum of appeal. By those grounds the appellants have challenged the finding of the lower appellate Court that the plots in dispute were the khudkasht of the plaintiffs. It appears to me that the learned Judge of the lower appellate Court, after deciding that Section 79, Tenancy Act, had no application to the case, sought to fortify his decision on another ground as well. But there is no definite finding recorded by the learned Judge on the question whether or not the plots in dispute are the khudkasht of the plaintiffs.
6. For the reasons given above, I dismiss the a appeal with costs.