1. The petitioner in this case is the wife of the defendant. She brought a suit alleging that she got certain lands from her father-in-law under a gift deed, that she has been in possession and enjoyment of that land-till the end of March 1929, and that she had leased out the said land, the last of the registered deeds being Ex. F, a registered kabulrat for ten years dated 5th June 1929. She stated in her plaint that her tenants on 29th June 1929 sent; her a registered postcard Ex. G which-reached the plaintiff on 2nd July 1929 saying that they do not find it suitable to carry on cultivation and gave up possession of the land. They also said' in Ex. G that the plaintiff might get the lands cultivated as it pleased her. In para. 5 of the plaint she states:
Then the plaintiff sent her brother Movva Rammayya to Tenali and Guntur on 3rd July 1929 to take the letter and get legal advice. In the meanwhile the defendant wrongfully entered upon the suit land without the plaintiff's knowledge and consent, removed the field ridge, watered the field and unlawfully transplanted' the same.
2. In para. 6 she states:
As soon as the plaintiff's brother returned from Tenali he saw the unauthorised cultivation after the removal of the ridge by the defendant, remonstrated with the defendant and complained to the elders in the village. But the defendant refused to restore possession to the plaintiff.
3. In para. 7 she alleges:
The suit land was in the rightful possession and enjoyment of the plaintiff till 2nd July 1929. The defendant dispossessed the plaintiff unlawfully on 3rd July 1929, trespassed upon the land without the plaintiff's knowledge and concurrence, transplanted the field and refused to give up possession in favour of the plaintiff.
4. She sued under Section 9, Specific Relief Act, for possession. The Court found the merits of the case to be with the plaintiff, but non-suited her because on the authority of Veeraswami Mudali v. Venkatachala Mudali 1926 Mad. 18, the plaintiff could not bring such a suit but only the tenants. Against this decision the present revision petition has been filed. A preliminary objection has been raised that no appeal or review lies against the decree under Section 9, Specific Belief Act, because the petitioner has got other remedies. No doubt the Allahabad High Court held so in Ram Anand v. Sheo Bala (1921) 63 I.C. 809 which followed Jwala v. Ganga Prasad (1908) 80 All. 831 and Ram Kishan Das v. Jaikishan (1911) 33 All. 647. In Devate Sri Ramamurti v. Venkata Sitaramachandra Rao 1914 Mad. 382, in a Letters Patent appeal against the order of Sankaran Nair, J., passed in revision, the Allahabad view was generally followed but in our High Court this rule is not regarded as absolute as can be seen from the judgment reported in Veeraswami Mudali v. Venkatachala Mudali 1926 Mad. 18 quoted above in which Jackson, J., sums up this matter thus:
Plaintiffs have their remedy by the way of suit and in such circumstances this Court will not ordinarily interfere by way of revision : Devate Sri Ramamurti v. Venkata Sitaramaehandra Rao 1914 Mad. 382 and Krishna Doss v. Chandook Chand (1909) 32 Mad. 334.
5. But if the remedy is clear the parties will not necessarily be driven to another suit in Krishna Doss v. Chandook Chand (1909) 32 Mad. 334. I therefore overrule the preliminary objection. As to the merits it has not been denied before me that the decision of this Court quoted above Veeraswami Mudali v. Venkatachala Mudali 1926 Mad. 18, on which the learned District Munsif relies, supports him. Jackson, J, upholds the view that such a suit must be brought by the tenants. He says:
I think it clear from the above examination tot the authorities that the view of the learned District Munsif is well supported and there is no justification for revision. I consider that the question is concluded by Sitaram v. Ram Lal (1896) 18 All. 440, Ramanadhan Chetty v. Pulikutti Servai (1898) 21 Mad. 288 and Mohideen Revuthar v. Jayarama Aiyar 1921 Mad. 42.
6. In the face of this decision and its elaborate discussion of the authorities I do not propose to re-agitate the question as to whether a suit by a plaintiff in which the tenants have not joined is maintainable. I may perhaps however note one subsequent case of Bombay which has been quoted to the opposite effect Ratanlal Ghelabhai v. Amaraing Rupaing 1929 Bom. 467. But in that case the tenants were added as parties and this was given as one of the reasons for interfering in revision, Then it was attempted to be argued that there had been a surrender of the lease by the tenants under Ex. G and hence it was the plaintiff who was in possession. Against this it is argued that Ex. G in the first place has not been proved, and if it was construed as a surrender of the lease deed it required to be registered. Under Section 111, T.P. Act, a lease of immovable property can be determined by express surrender, by means of mutual; agreement between the lessor and the lessee or by implied surrender. There is no express surrender in this case by mutual agreement nor is there any implied surrender in the sense that the plaintiff consented to it. Ex. G is by itself nothing more than a unilateral notice of abandonment. The distinction between abandonment and surrender has been pointed out in Sakayet Mollah v. Alam Mollah 1916 Cal. 454, Juddoonath Ghose v. Scholne Kilburn & Co. (1888) 9 Cal. 671, Balaji Sitaram Naick v. Bhikaji Soyare Prabu (1884) 3 Bom. 164. In Govindaswami Chettiar v. Palaniappa Chettiar 1925 Mad. 833, it was held that the lessee could not put an end to the lease even if there was a breach of the covenant by the lessor.
7. The cases quoted by the petitioner are Nobian Das v. Kailash Chandra Dey (1910) 7 I.C. 924, Bengal Coal Co. Ltd v. Manoranjan Bagchi 1919 Cal. 694 and Ramgopal Bhagwan Das v. Pameshwari Das 1924 Lah. 474. In the first case there was a relinquishment accepted by the lessor. In the second the abandonment was acted on by the lessor and in the third there was conduct by the lessor by which his consent could be inferred. It is in my opinion not open at all for the plaintiff in the face of her plaint to argue that she acted on the abandonment indicated by Ex. G. I have quoted above what she says she did on receipt of Ex. G; and immediately after sending Ex. G to her lawyer she alleges that the defendants dispossessed her. She alleges in para. 7 of the plaint that she was in possession and enjoyment of the land till 2nd July 1929 and that she was unlawfully dispossessed on 3rd July 1929. The card Ex. G reached her only on 2nd July 1929 and therefore the attitude she takes up in the plaint as regards her possession is that the tenant's possession is her possession for the purpose of bringing the suit. It is therefore not open to her to argue in revision that she accepted the abandonment indicated by Ex. G. As Ex. G is dearly a mere abandonment the question of registration does not arise, but I would also uphold the objection that it has not been proved. It was argued that it was admitted by the defendant but the written statement challenges it. Section 67, Evidence Act states,
that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
8. The plaintiff has not stated that the card is in the handwriting of her tenants and the fact that thumb-marks have been affixed to it prima facie shows the contrary. If those thumb marks are those of her tenants she adduced no proof of it. It was argued that thumb marks are exempt from the provisions Section 67, Evidence Act. But it is hardly necessary to say that there is no authority for such a proposition. With regard to Section 67, Evidence Act the following cases may be referred to Salaik Chand v. Tamiz Bano 1928 All. 303, Sarup Singh v. Emperor 1925 Lah. 299 and Piter v. Mahamed Indoo Miah 1911 Cal. 255. I see no reason at all to interfere in this case. The plaintiff's attitude seems to be that her tenants are colluding with the defendant. If so the defendant is on the land as their licensee and plaintiff cannot maintain the suit. The revision petition is dismissed with costs.