1. This appeal is by defendants 1 and 2, and arose under the following circumstances. One Rameshwar Koeri, defendant 3, has a daughter Dariyai Kunwar, who is married to defendant 1. Sarnam Prasad. Dariyai Kunwar's son is Hardeo. It appears that there was some dispute between Rameshwar Koeri, on the one side, and his daughter and daughter's son, on the other, as regards the occupancy holding of Rameshwar Koeri. The daughter and the daughter's son had no interest in the occupancy holding during the lifetime of Rameshwar Koeri, but the daughter's son was entitled to succeed after the death of Rameshwar Koeri, provided the daughter's son shared in the cultivation at the time of the tenant's death. There was a compromise between Rameshwar, on the one hand, and the daughter and the daughter's son and son-in-law, on the other, on 24th April 1924, which was filed in the Revenue Court in proceedings relating to rectification of a khatauni, and it was agreed that the names of the daughter and the daughter's son should be entered in the village papers, that Rameshwar would retain his right to let out the plots without the consent of his daughter or daughter's son and that his son-in-law Sarnam Prasad, would pay off the entire debts contracted by Rameshwar Koeri and would relinquish the amount of the simple money decree which he had obtained against his father-in-law.
2. The plaintiffs, who are the respondents before us, and who unfortunately are unrepresented in this Letters Patent appeal, came to Court for obtaining possession of certain plots being part of the occupancy holding of Rameshwar and for mesne profits and damages for taking the. crops on these allegations. They said that Rameshwar had let out the lands to them and they raised the crop in Kharif and Rabbi of 1332 fasli. About the beginning of 1333 fasli, which would be July 1925, the defendants, namely, Sarnam Prasad, the son-in-law, and a relation of his, defendant 2, began to create mischief. The plaintiffs had grown bajra in July 1925 and the defendants cut the same in October 1925, and in November 1925 the defendants altogether dispossessed the plaintiffs. The plaintiffs accordingly claimed a decree for possession, for Rs. 50 as damages for the value of the bajra crop sown by them and further they claimed mesne profits from Kharif 1333 fasli to the delivery of possession of the property in suit to the plaintiffs. The suit was defended by the two principal defendants, 1 and 2, defendant 3 being Rameshwar himself. Defendant 1 stated that he. was cultivating the land on behalf of his wife and son, and that Rameshwar Koeri wasin collusion with the plaintiffs. Rameshwar Koeri filed a written statement supporting the plaintiff's case. The suit succeeded in the Court of first instance, which decreed the claim for possession and for Rs. 50 as damages and directed investigation into the amount of mesne profits in the execution department. There was an appeal by defendants 1 and 2, and it was unsuccessful, except in this: that the lower appellate Court reduced the amount of damages which had been decreed to the plaintiffs. An appeal was filed in this Court, and the learned single Judge-has dismissed the appeal.
3. The principal point taken before us, which was also taken before the learned single Judge, was that the plaintiffs had no title to the property. The argument is this: the occupancy holding-could be sublet under the law only by a registered instrument, if the lease was to be from year to year for a period exceeding one year. No document is forthcoming to establish the lease. If the lease was granted in July 1924 (early in 1332 fasli), it could last for only one year and at the end of the year it expired. A fresh lease for one year could be granted by Rameshwar,. but it is not proved that it was granted. The plaintiffs were dispossessed in November 1925 or about the middle of the agricultural year 1333. The suit was filed in July 1928 when the agricultural year 1336 had commenced. When the plaintiffs were out of possession and defendants 1 and 2, were in possession, it was not open to Rameshwar to make a lease for oven one year when Rameshwar himself was out of possession. The ordinary practice no doubt is that a zamindar or occupancy tenant lets or sublets his land for one year, and at the close of one year he agrees that the tenant, who has already paid one year's rent, should hold the land for another year. In such cases a sublease is brought to an end at the end of the; previous year. For such leases no document would be needed. But in this case the plaintiffs admit that they were in possession for 1 1/2 years and they were dispossessed in November 1925. There could be no question therefore of any renewal of the lease for 1334, 1335 or 1336 fasli. The plaintiffs are claiming as if they held the lease which was granted to them in Kuar 1332 (see the statement of the plaintiff Imdad Ali) and that the lease subsists so that it entitled the plaintiffs to claim possession of the property.
4. We are of opinion that this argument is valid, and is supported by Section 25, N. W. P. Tenancy Act of 1901, which was in force when the alleged lease of Kuar 1332 fasli was granted. In this view, the claim for possession must fail, and also the claim for mesne profits, but the claim for damages decreed by the Court below must stand, which was in respect of the kharif crop of 1333 fasli. We accordingly modify the decrees of this Court and the Court below and dismiss the claim for possession and mesne profits. The decree granted by the lower appellate Court for the sum of Rs. 20 as the value of the bajra crop sown by the plaintiffs and misappropriated by defendants 1 and 2 stands. In view of the fact that this point of law which has succeeded in this Court was not taken in the Court of first instance and was taken in the lower appellate Court but was not properly pressed before that Court, we direct that the parties 'shall bear their own costs throughout. The above draft judgment was dictated without hearing the respondents. Mr. Sanyal, a learned Counsel of this Court, then intimated to us that he had received instructions to appear in this case, but by an oversight had omitted to file his notice of engagement. We accordingly permitted him to argue the appeal for the respondents. We have heard the learned Counsel, and his argument is this.
5. A lease for five years, although oral is good against all the world if the landlord has omitted to sue to avoid the lease. The period of limitation for a suit by the landlord is one year. It may be true that if the period of one year expires the landlord will have to submit to the lease for five years, for the simple reason that he has no right of suit after the expiry of one year. But from this it does not follow that the so-called sublessee has a title of his own. In the case where he is in possession, he can be ousted only by a person who has a better title and has a right to maintain a suit. If the landlord comes to Court after the expiry of one year, he would be put out of Court on the ground of limitation, and the sublease without title would continue. In the case before us the alleged sublessee is the plaintiff, and he must prove his title. The mere fact that the landlord has omitted to sue within one year will not give him a title. Admittedly the plaintiffs are out of possession, and they can' succeed only if they can prove a title and a right to possession. We see no reason to alter the draft judgment which we dictated before, and we accordingly pass the order already dictated.