1. Defendant No. 3 has brought this second appeal against the confirming judgment of the Court below arising out of a suit brought by the plaintiff for ejectment of the defendants from the house in suit, for arrears of rent and for damages. The plaintiff's case is that in 1S40 he let out two rooms and a verandah to defendant No, 1. Subsequently defendant No. 1 had introduced a sub-tenant (defendant No. 2) and sometime after defendant No. 1 again introduced another sub-lessee (defendant No. 3) into the house in suit. The plaintiff served a notice to quit on defendant No. 1 by 31-8-51. He therefore prays for arrears of rent to the extent of Rs. 525/-, that is till the termination of the tenancy on 31-8-51. He also prays for damages against all the three defendants from 1-9-1951 till they deliver vacant possession of the house, in suit. The plaintiff's averment is that these two defendants, that is, defendants 2 and 3, who were subsequent sub-lessees of defendant No. 1 are occupying portions of the suit house without his consent and that he had never accepted them as his tenants. It is to be noted that he has treated them as mere trespassers against him.
2. The suit was resisted by the defendants mainly on the ground that in fact the plaintiff was a party to the arrangements as between defts. 1, 2 and 3. Indeed defendants 2 and 3 were subsequent lessees introduced to the suit house by defendant No. 1; but nevertheless that was done with the consent and approval of the plaintiff. The notice having been served only on defendant No. 1 the suit for ejectment as against all the defendants, who are tenants of the plaintiff, is Incompetent.
3. This plea of the defence has been negatived by both the Courts below who have found as a matter of fact that the sub-leases in favour of defendants 2 and 3 at different times were never with the consent of the plaintiff. The trial Court therefore granted the relief for ejectment and ordered a decree to be passed in respect of arrears of rent of Rs. 525/- as against defendant No. 1 alone. But regarding damages from 1-9-51 till delivery of possession, the Courts below have granted a joint decree against all the three defendants.
4. Mr. Misra, appearing on behalf of the appellant, attacks this portion of the decree in this second appeal and contends that the joint decree against all the three defendants regarding damages is illegal on account of the very case of the plaintiff. The point taken is that the defendants 2 and 3 are indeed trespassers as against the plaintiff at different times. Defendant No. 1 became a trespasser on 1-9-51. There was no joint act of trespass. Merely because defendant No. 1 is the lessor and defendants 2 and 3 are sub-lessees a joint decree for damages cannot legally be passed by the Court. He refers me to the deposition of the plaintiff himself who admits:
'Defendant No. 3 opened a goldsmith shop in the house 4 or 5 years back. He has occupied that portion which defendant No. 1 occupied for photo Emporium.'
The fact remains therefore that defendant No. 3 the present appellant, did not commit an act of trespass in respect of the entire portion of the suit house. He was on the very case of the plaintiff in occupation of only a portion and his occupation certainly in the eye of law is an act of trespass. But he will not be liable to pay damages in excess of the extent of the portion in inspect of which he has committed trespass. This is on account of the reason that he was not a party in committing a Joint act of trespass and further there is neither any allegations nor proof that all the three defendants had entered into a conspiracy in committing their trespass. It appears clear to me that the Courts below have granted a joint decree against the defendants only on the ground that defendants 2 and 3 are sub-lessees of defendant No. 1 even though they were sub-lessees at different times and even though there was no privity in between defendants 2 & 3, regardless of the position that defendant No. 3 is only in possession of a portion of the disputed house.
5. I will rely upon a decision of their Lordships of the Patna High Court reported in Ram Prakash Das v. Bankey Behari Lal AIR 1934 Pat 894(A), for the proposition that merely because defendant No. 1 has sub-let in favour of defendants 2 and 3 there cannot be a joint decree for damages. Their Lordships decide that neither the mere fact that there was the relationship of landlord and tenant or lessor or lessee between the parties, nor the fact that they in any sense encouraged the sub-tenants is sufficient to support a finding that they were joint tortfeasors. In laying down this principle, their Lordships relied upon an earlier Privy Council decision reported in L.P.V. Fugh v. Ashutosh Sen, AIR 1929 PC 69 (B). I may profitably quote the very passage which was quoted by their Lordships of the Patna High Court from the Privy Council decision:
'Neither the fact that he was their lessor, assuming, contrary to their Lordships' view, that he Was a lessor in the proper sense of the terms, nor that he 'encouraged' the wrong doers, whatever this may mean, would be sufficient by itself to support a finding that he was a joint tortfeasor.'
6. For the aforesaid reasons therefore a joint decree for damages passed by the Courts below is modified to the extent that defendant No. 3 will not be jointly liable for the damages along with the other defendants. He will be liable only to the extent of the portion he is in possession. The amount has got to be fixed by the executing Court.
7. In conclusion, the appeal of defendantNo. 3 succeeds in part; but each party is to bearhis own costs of this Court only. The order as tocosts of the Courts below will stand.