Sadasiva Aiyar, J.
1.Plaintiff and the 2nd defendants are co-sharers of the melwaram right in the plaint land according to the plaint allegations. As the suit has been dismissed on a preliminary point, we have to accept only the plaint allegations with any facts admitted on both sides in order to see whether the dismissal is legally sustainable. 1st defendant was the occupancy tenant of the plaint land. It is not denied that he had sold the land to the 2nd defendant a few days before the suit was instituted in the Court of the Special Deputy Collector of Ramnad. Thus on the date of the suit, the 2nd defendant owned a half share in the melwaram right and the whole of the Kudivaram right. The question is whether the plaintiff who owns the other half share in the melwaram right, can maintain this suit in the Revenue Court for ejectment and obtain a decree for possession of the land on behalf of himself and the 2nd defendant.
2. The suit as framed was, no doubt, for the ejectment of the 1st defendant, ignoring the sale to the 2nd defendant by the 1st defendant and the transfer of possession by the 1st defendant to the 2nd defendant. We may take it that the sale was unknown to the plaintiff. When he brought the suit but, yet as the sale and delivery had, as admitted, before the Deputy Collector at the time of hearing, taken place before the suit was instituted, the rights of the parties have to be decided upon as these rights stood on the date of the plaint and in the light of the facts which had taken place before the date of the plaint.
3. The ground on which the lower Courts have dismissed the suit is that as the plaintiff's co-sharer (the 2nd defendant) did not join the plaintiff in bringing this suit, the plaintiff alone cannot maintain this suit to eject the 1st defendant (the tenant) and reliance is placed on Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh I.L.R. (1908) G. 807 in support of the above view by the lower Appellate Court. I have dissented from some of the observations in Gopal Rao Mohuri v. Dhateshwar Pershad Narain Singh I.L.R. (1908) G. 807 in the decision referred to by my learned brother in his judgment. I have dissented from those observations in that case which support the view that one of several joint lessors cannot put an end to the demise even in respect of his own share of the land held in common. Further, this is not a case of a landlord putting an end to the tenancy, but it is a case of a landlord suing on a statutory right given by Section 151 of the Madras Estate's Land Act to eject a tenant on account of the latter's having constructed a house upon the land held by him as a tenant for agricultural purposes and thereby having made it unfit for agricultural purposes. I do not think that cases relating to the forfeiture of tenancy under the ordinary law can throw much light on this question. The Madras Estates Land Act does not say that the tenancy is forfeited or that the tenant ceases to be a tenant when he commits the acts mentioned in Section 151. Under the Madras Estates Land Act, even the denial of the landlord's title is no ground for ejectment, and Sections 151, 152 and 153 show that a tenant who has incurred liability to be ejected is still called a tenant till a decree is passed for ejectment in the suit brought by the landlord. Though I am unable to support the dismissal of the suit on the ground on which the lower courts have based such dismissal, I think the dismissal of the suit can be justified for the reasons which I shall now proceed to state. As it is admitted that there had been a sale to the 2nd defendant before the suit was brought and as the 1st defendant had ceased to have possession of the plaint plot on the date of the suit, there was really no cause of action vested in the plaintiff to sue the 1st defendant in ejectment on the date of the suit. No doubt, the plaint can be allowed to be amended by converting the prayer for the ejectment of the 1st defendant into a prayer for the ejectment of the 2nd defendant. But the questions to be considered before allowing such an amendment are (1) ' Is the plaintiff entitled to eject the 2nd defendant, who is a co-sharer in the melwaram right alone with the plaintiff and who is now the owner of the whole kudivaram right' (2) ' Is such a suit maintainable in a Revenue Court.
4. Section 8 of the Madras Estates Land Act begins with the words ' The merger of the occupancy right under Sub-sections 1 and 2'. This implies that some merger of the occupancy right takes place when the circumstances mentioned in Sub-sections 1 and 2 occur. Sub-section 1 relates to the entire interests of the landholder and the occupancy right becoming united by transfer, succession or otherwise in the same person. In such a case there can be no doubt that there is a merger of the occupancy right. Sub-section 2 relates to a case where the occupancy right has been transferred to a person jointly interested in the land as landholder. In such a case the whole occupancy right cannot be merged as the person to whom the whole occupancy right was transferred, was only a landholder in part; but under the general law, a fraction of the occupancy right corresponding to the fraction of the landholder's right (vested in the purchaser) must become merged in the latter. In the present case, therefore, when the 2nd defendant purchased the 1st defendant's Kudivaram right in the whole plot, the occupancy right in a half share became merged in the half share of the melwaram right belonging to the 2nd defendant and the other half of the occupancy right remained without merger in the 2nd defendant. Supposing that this suit for ejectment of the 1st defendant from the whole of the land is converted by amendment into a suit for ejecting the 2nd defendant from the whole of the lands, even then this suit must fail because the 2nd defendant has become entitled to both the melwaram and the kudivaram in half the land and is entitled to remain in possession of at least that half share. It may be argued that the suit might be amended as a suit for the joint possession of the land with the 2nd defendant. Then, apart from the question raised in certain Calcutta decisions whether the proper course for a co-sharer is not to sue for partition and separate possession under such circumstances, there arises the preliminary difficulty whether the Revenue Court can entertain such a suit for joint possession. I do not think that a suit for joint possession is contemplated as within the jurisdiction of the Revenue Court under Section 151 of the Madras Estates Land Act as that section contemplates a suit for Khas possession ejecting a tenant as such ; nor can the suit be amended as for partition and possession of half share as such a suit cannot also be maintained in a Revenue Court. The right of one co-sharer against another co-sharer seems to have been recently considered by Sankaran Nair and Ayling JJ. in Muthiah Chetty and Ors. v. Subramanian Chetty and Ors. 1. S.A. No. 1600 of 1911 and, though reasons are not given for the decision, the lower appellate courts' decision, was confirmed and it is clear from the printed papers that it was held by the lower Appellate Court that even a trespasser building upon a land belonging to two co-sharers cannot be enjoined by a mandatory injunction at the suit of only one of the co-sharers if the trespasser had, before the suit, acquired the right of the other co-sharer and if the extent of the land built upon by him was less than what would fall to him on a partition. In Sreemutty Basanta Kumari Dassi v. Mahesh Chandra Shaha 18 C.W.N. 328. it has been decided that a decree for joint possession can be given to a co-sharer only in exceptional cases On the whole, therefore, I think that the suit brought in the Revenue Court and framed as a suit to eject the 1st defendant Who was not in possession on the date of suit was rightly dismissed and I would dismiss this second appeal but without costs.
Seshaghiri Aiyar, J.
5. The plaintiff and the 2nd defendant are the proprietors of the village of Thavasikudi. The 1st defendant is a ryot of the village. The plaintiff's case is that the 1st defendant built a house on. a portion of the holding which is cultivable land on the 29th of May 1910 and has thus rendered himself liable to be evicted. The 1st defendant's plea is that he had put the 2nd defendant in possession of the property under an agreement to sell, that he himself did not erect any building and that there is no cause of action against him. The 2nd defendant states that he erected the building complained of.
6. As on the first hearing we had no information regarding the date on which the 2nd defendant became the purchaser. we asked the learned Vakils appearing in the case to ascertain that fact We are informed that the sale was on the 15th June of 1910. This suit was brought on the 17th June. It is thus clear that when the suit was instituted the 2nd defendant had purchased the kudivaram right in the plaint property.
7. The courts below dismissed the plaintiff's suit on the sole ground that one co-sharer land-holder was not entitled to maintain a suit to eject the tenant of the holding and they relied upon Gopal Ram Mohini v. Dhakeshwar Pershad Narain Singh I.L.R. (1908) C. 807 for this position. I am clearly of opinion that this view is incorrect. In this High Court there has been a course of decisions to the effect that one trustee can maintain a suit as against a stranger making the other co-trustees party defendants. In the case of co-sharers also there are decisions to the same effect. If the plaintiff's case is true, the 1st defendant forfeited his right to property by committing waste, and he became a trespasser liable to be evicted at the instance of the persons entitled to the property.
8. The decision in Gopal Ram Mohuri v. Dhakeshwar Pershad, Narain Singh I.L.R. (1908) C. 807 is opposed to the view taken in Sri Raja Simhadri Appa Rao v. Pratipathi Ramayya I.L.R. (1905) Mad. 29 and in Korapalu and Anr. v. Narayana : (1913)25MLJ315 . The case of Jatindra Nath Chowdhri v. Prasana Kumar Barterjee I.L.R. (1910) G. 270 related to the enhancement of the rent. That does not affect the decision in this case. For it is a well-recognised principle of law that one co-sharer alone cannot maintain an action to increase the burden upon the tenant. The tenant entered into a contract with all the landholders as a body and the contract rests upon the consent of every co-sharer, and so long as there is no severance of the interests of the co-sharers either by partition or by some other arrangement the tenant is entitled to say that the concurrence of all the parties should be obtained for increasing the rent payable by him. These considerations do not apply to cases where one of the co-sharers sues to eject a trespasser; he will then be acting on behalf of his co-sharers. This view is supported by the decision in Ram Buksh v. Chanda (1911) 8 A.L.J. 272. In Mangalasami Thevar v. Satayappa Poranden : (1913)25MLJ351 one of the co-sharers was allowed to sue for his share of the rent upon a joint contract. These decisions show that in Madras and in Allahabad the view taken in Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh I.L.R. (1908) C. 807 does not find any support; I have stated already that on principle there is no justification for the theory that one co-sharer alone cannot maintain a suit to recover property from a trespasser. The ground therefore upon which the courts below dismissed the suit cannot be sustained.
9. Mr. Ananthakrishna Aiyar for the Respondent has drawn our attention to a decision of Benson and Sundara Aiyar JJ. in Chellasami Tevar v. Alayan S.A. No. 1957 of 1911 which holds that when a co-sharer purchases the tenant's interest the suit brought by the other co-sharers should be dismissed. The question whether joint possession can be given to the plaintiff co-sharers with the defendant co-sharers was not considered in that case. Section 8 Clause 2 of the Estates Land Act provides that when a landlord obtains by transfer of the occupancy right in the land he shall be entitled to holding the land subject to the payment to his co-landholders the share of the rent which may from time to time be payable to them The principle of this section as contended for by Mr. Srinivasa Aiyangar for the appellant is to keep alive the liability to pay rent as tenant even after the purchase ; in other words, the purchase does not work out a fusion of the interest of the landlord and the tenant. When we compare Clause 1 of Section 8 which provides for the merger of the interests of landlord and tenant it is clear that the legislature intended that only in cases where the entire interests of the landlord and tenant co-alesce that the distinct capacities of the tenant and landlord should cease to exist. The language of Section 1ll, Clause (d) of the Transfer of Property Act is to the same effect. Reference may also be made to Section 60 of the Transfer of Property Act which enables a co-mortgagor to sue to redeem his share only under certain conditions. I therefore hold that the 2nd defendant has not ceased to be a tenant by purchasing the interests of the 1st defendant in a portion of the holding. Even in this view I am not prepared to agree with Mr. Srinivasa Aiyangar's contention that the 2nd defendant can be evicted from the property. The plaintiff is only entitled to joint possession with him. Neither the plaintiff nor the 2nd defendant can predicate that they have got rights in any specific portion of the property. Their right is for joint possession until by partition specific portions are allotted to their share. I would have been prepared to give a decree for joint possession to the plaintiff along with the 2nd defendant if such a decree can be passed in this suit. But the proceedings commenced in a Revenue Court; and Mr. Srinivasa Iyengar has shewn us no provision of law nor any authority that the special Deputy Collector is competent to pass a decree for joint possession. I dismiss the second appeal on this ground. But under the circumstances of the case I make no order as to costs.