1. This is an appeal by the plaintiffs in a suit for ejectment of non-occupancy tenants under sections 58 and 63 of the Tenancy Act. The suit was decreed by the Trial Court but has been dismissed by the lower Appellate Court. It is common ground that the plots in suit were held by one Musammat Sugandhia an occupancy-tenant and that the entire rent of the plot was realised by the plaintiffs. On Sugandhia's death the defendants took possession of the plot claiming to have succeeded to Musammat Sugandhia's occupancy tenancy. There was a dispute in the Revenue Courts regarding the entry to be made in the papers with the result that the defendants were recorded as non-occupancy tenants. On the plaintiffs subsequently suing to eject them they changed their ground and alleged that they were in possession as co-sharers. That they have a proprietary share in the village is not in dispute.
2. The learned District Judge has dismissed the suit mainly on the ground that in his opinion the plaintiffs alone were not entitled to sue under Section 194 of the Tenancy Act. He also holds, however; that the defendants took possession of the land as co-sharers. If this latter finding is ore of fact it concludes the appeal. It appears to me, however, that in this case the conclusion at which the learned District Judge has arrived is really a conclusion of law from facts which are practically undisputed. The learned District Judge considers that when Musammat Sugandhia died her holding escheated to the entire proprietary body consisting of no less than 148 co-sharers and that unless a contract of tenancy between the defendants and these 148 co-sharers could be established the defendants could not be treated as tenants of the plot. This reasoning goes in the teeth of the admitted actions of the defendants themselves. When they took possession of the land the character in which they took possession was that of successors to Musammat Sugandhia who was tenant of the land, and the only question in dispute between them and the plaintiffs was whether the tenancy was an occupancy or a non-occupancy one.
3. The finding as to the right of the plaintiff to sue is also, in my opinion, legally unsound. Indeed if the view taken by learned Judge were correct it would be impossible for all the zemindars to arrange for cultivation at all in the eastern districts were the number of co-sharers sometimes amounts to hundreds. In this case it is stated by the learned District Judge in his judgment that there are 148 co-sharers. In this state of things an informal partition between the co-sharers is the only means by which the rent can be realised and the revenue paid. Such a partition or phatbanai is in existence in this village and as stated by the Trial Court is formally recorded in the wajib-ul-arz which says:
Each co-sharer by a verbal phatbandi which is in force for a long time collects rent of his own share separately from the tenants.' When the learned Judge says that there has been no partition he means that there has been no formal partiti on carried out under the provisions of Chapter VII of the Land Revenue Act; but a phatbandi of this kind which has been in force for over forty years (the wajib-ul-arz is dated 1881) is quite sufficient to entitle the co-sharer in whose share particular plots fall to collect the rents and eject the tenants of those plots, and the land is not removed from his share merely because a particular tenant happens to die without heirs.
4. The learned Judge's decree is clearly erroneous and I set it aside and restore the decree of the Trial Court with costs in all Courts.
5. I have not thought it necessary to discuss the preliminary plea that no appeal lay to the Court below because there is no substance in it. A question of proprietary right was clearly raised within the meaning of Section 177(b).