1. This appeal arises out of the following circumstances. The respondents, who are four in number, instituted the suit out of which this appeal has arisen for the ejectment of the appellant's predecessor in interest (husband) from certain plots. The allegation was that the respondents were the occupancy tenants and the original defendant was their sub-tenant. The defendant pleaded that he was a co-sharer in the village and he was holding the land as his Khud Kasht. He denied the respondent's right to eject him as a sub-tenant. He also pleaded limitation.
2. The suit was thrown out by the Court of first instance, but on appeal the learned District Judge remanded an issue to the Muusif. That issue was: ' Are the present appellants occupancy tenants in the land in dispute or is it Khud Kasht of the present respondents? ' The learned Munsif held that the plaintiffs, the appellants before the first Appellate Court, were occupancy tenants. He also held that there was no relation of landlord and tenant between the parties and that the respondent (the original defendant) was a co-sharer in the patti in which the lands were situated and he held the land without the consent of the plaintiffs. He also held that as there was a lam-bardar in the patti the defendant could not be regarded as land-holder.
3. On receipt of the finding, the lower Appellate Court decreed the suit. It did not come to any conclusion in what capacity the defendant was in possession nor did it come to any conclusion how long did the defendants possession extend.
4. These points not having been determined by the Court below, with the help of the learned Counsel for the parties, I went through the evidence and come to the following conclusion. I find that the defendant was one of the co-sharers in the patti and that he had been in possession of the lands for a period between 6 and 10 years without the consent of the plaintiffs.
5. On these findings it has been argued by the learned Counsel for the appellant (the original defendant's sucoessor-in-title) that the suit should have been thrown out as being barred by limitation under Section 79 of the Tenancy Act and serial No. 30 of the 4th schedule of the Tenancy Act, the period of limitation is laid down as six months.
6. It has been argued by the learned Counsel for the respondents that the appellant cannot be called the 'landholder.' She is only one of the several co-sharers who are acting through a lambardar, one Reshan Singh. The question is, how far this contention of the respondent is correct.
7. No authority bearing on the point has been cited bo me. If we look to the definition of the word 'land-holder' to be found in Section 4 of the Tenancy Act we see that the landholder is the person to whom rent is payable. Where there are more than one person entitled to receive rent, the land-holder would be the whole body of men and not one single member. The word 'person' should be read as having been used to include 'persons'. Applying this definition, it follows that when a tenant is unlawfully ejected, say, by one of a body of 150 co-sharers in the patti, who together would be entitled to recover the rent, the tenant can not be deemed to have been ejected by his land-holder. Referring to Section 194 of the Tenancy Act we find that where there are two or more co-sharers entitled to any right, that right must be exercised conjointly unless they have an appointed agent. Such an appointed agent would be the lambardar. For the application of the rule of six months' limitation and of Section 79 of the Tenancy Act it seems to me it would be necessary for the whole body of co-sharers to act (to eject the tenant) or the lambardar to do so on behalf of the whole body of co-sharers. This would follow from the natural meaning of the several sections. If we look to the spirit of the rule we also see that this is based on sound sense. As I have said, by way of example, if there be 150 co-sharers (a matter which is not unusual in Districts like Azamgarh, Gorakhpur and Basti) and one of the co-sharers happens to take it into his head to eject a tenant it would be very hard on the latter. He may sue within six months one of the 150 co-sharers and when he has received the fruit of his litigation, he may be dispossessed by another of the 150 of the co-sharers.
8. My finding of law, therefore, is that the ejectment of the respondents by the appellant's predecessor was not an ejectment to which Section 79 of the Tenancy Act or the short period of limitation would apply.
9. That being the case, there seems to be no bar to the success of the plaintiffs-respondents. It is true that they brought the suit in a Courb which had jurisdicbion only bo eject tenants. But no question of jurisdiction having been taken, and as it has been found that the title subsists in the respondents, there is no reason why bhey should nob succeed. I have already stated that the case went in appeal to the District Judge who was the Appellabe Court both for the Revenue and Civil Courts. The issue that was remanded by him for trial, was remanded to the Civil Court. It follows that the decree of the Court below was right.
10. The appeal fails and is hereby dismissed with costs which will include Counsel's fees in this Court on the higher scale.