1. These petitions are filed' against the order of the Subordinate Judge of Ellore on applications filed under Order 21, Rule 100, Schedule 1, Civil P.C. (E. A. Nos. 199 and 201 to 206) in O.S. No. 98 of 1926. E.A. No. 206 and a. portion of E.A. No. 205 were dismissed and the rest of the petitions were allowed.
2. The opposite party namely the decree-holder in the main suit files these revision petitions.
3. The facts out of which these petitions arise may now be stated. The main suit is a dispute between two persons who are half-brothers. The plaintiff is the younger brother and the defendant is the elder.
4. The plaintiff's case was that during the lifetime of the father in 1924 there was a division of the father's property by the father himself according to which two-thirds share was allotted to the plaintiff and one-third to the defendant, and each was enjoying his separate share, the plaintiff's enjoyment being through his father as he was a minor.
5. After the father's death the elder brother refused to recognize the younger brother's right to more than half a share and contended that the division was in two shares, with the result that a suit had to be filed on behalf of the plaintiff by his maternal uncle in 1926. The suit was tried and the plaintiff's case was found to be true and it was decreed. I am informed that the defendant has appealed to the High Court and that the appeal is pending. It appears that in the main suit itself the defendant made no suggestion that there were any tenants on the suit land and that they should be made parties in the suit. Incidentally I may observe that the suit is not one for partition but for possession of separate and definite items on the ground that they fell to the plaintiff's share and were trespassed upon by the defendant.
6. In 1928 execution was taken out of the decree and an amin was deputed to deliver possession to the plaintiff's next friend. He and the amin went to the lands on 23rd November. The decree-holder and the amin were resisted.
7. Ex. A is the application of the amin to the Station House Officer of Pen-tapadu for police help. This is a very important document in the case. So I will set forth a portion of this application.
Accordingly, when I went to deliver the properties, defendant and men belonging to the defendant obstructed me with a, bad intention of putting the minor's guardian out of possession of the properties and stealing away the crops raised on the scheduled lands. If I deliver them against the defendant's will they are ready to commit danger to lives with brute force. The Court has passed orders in E.A. No. 1484 of 1927 to remove such obstruction and deliver, if the defendant should obstruct unlawfully in this way. The above warrants have to be executed in accordance with the above orders and without breach of peace. So .1 pray that your honour may kindly be pleased to render such help so that the warrants may be executed.
8. The Subordinate Judge had 'previously ordered on 18th November that police help may be taken. This is the order referred to in Ex. A. After such order, there is nothing high-handed in the acts of the amin and the decree-holder. Thereupon the Station House Officer deputed a head constable and two police constables to help the amin to preserve peace.
9. At this stage it is important to observe that the obstructors were described in Ex. A as 'the defendant and men belonging to the defendant.' Who are these men belonging to the defendant?
10. They must be either farm servants of the defendant or tenants of the defendant. In either case unless they are occupancy tenants they are bound by the decree : see Jafirji Ibrahimji v. Miyandi Mangal A.I.R. 1922 Bom. 273, and Jairam Jadowji v. Nouroji Jamsedji A.I.R. 1922 Bom. 449, which I prefer to Erra v. Gubbay  47 Cal. 907 which is also distinguishable. Otherwise they would not be described as men belonging to the defendant. On 24th November the amin effected delivery of possession and reported delivery to the Court. The Court recorded delivery without objection.
11. Some time later about 1st December some or all of the present claimants attempted to cut the crops on the land and one of the head constables gave a notice to one of these claimants (one of the two claimants in E.A. No. 203) not to cut the crops. This is Ex. C dated 1st December 1927. The head constable also sent a report to the Sub-Inspector of Police which is Ex. D. The Sub-Inspector was requested to come and prevent a breach of the peace. Afterwards these claimants or some of them were charged in a criminal case No. 90 of 1927. The present petitions were filed under Order 21, Rule 100, of the Code on 21st December 1927, i. e. after and not before the incident of 2nd December 1927. Para. 4 begins by saying that on 1st December 1927 and 2nd December 1927 the decree-holder and his brother-in-law came to their fields and attempted to forcibly cut the crops raised by the petitioners. Para. 5 says:
With the assistance of the police respondent 1 threatened the petitioners and has dispossessed the petitioners and cut and carried away the crops worth Rs. 240.
12. It is clear from paras. 3 and 4 that the petitioners must have been dispossessed only on 1st December 1927 or 2nd December 1927, not earlier. Then para. 7 however says:
Respondent 1 alleged that he obtained delivery of the property on 24th November 1927 and 25th November 1927 through the Court. The petitioners submit that no such actual delivery was in fact effected. If it was reported to the Court that any such delivery took place, it must have been merely a fake for nobody came near our lands.
13. Paragraph 8 says that the petitioners are occupancy tenants in possession of the land. Respondent 2 in these petitions who was the judgment-debtor admits the plaintiff's petition but denies that the land is an estate or that the petitioners had occupancy rights. The decree-holder is respondent 1. He denied that the petitioners were persons who had any possession of the suit lands. He contended also that the petitions are not maintainable and that he got possession on the date of delivery. The Subordinate Judge's statement that the plea as to maintainability was not taken in the counter-petition is not correct. For some reason which is not clear from the judgment of the Subordinate Judge and of which the petitioners before me complain as a serious irregularity, the decree-holder was asked to begin the case and after he finished examining his witnesses the claimants' witnesses were examined.
14. Witness 1 is the claimant in E.A. No. 202. In chief examination he says that he was ejected from the land with the help of the. police. No date is mentioned. Taken along with the petition the date of this ejectment must be only 2nd December 1927. He then gives details of the holdings of the other petitioners. In cross examination he says:
I paid cist at Rs. 6 per year for that land to Subbarayudu and after his death to his widow I was not present when the lands of the other claimants were delivered to the plaintiff with the help of the police.
15. Witness 2 is one of the joint petitioners in E.A. No. 203. He also says that he was ejected without giving any date.
16. In cross-examination he says : 'The police came to my land and ejected me from it.' He does not say that he paid any rent to Subbarayudu's widow the plaintiff's mother. No other witness is examined.
17. It is clear from the evidence of these two witnesses that they were ejected on 2nd December and that they know nothing about the ejectment of the other claimants in the case, as to which therefore there is no evidence on the record on which any Court could have passed orders, these witnesses themselves knowing nothing about it.
18. Mr. Varadachariar who argued the revision petitions before me put the matter thus. This being a matter in revision, he said he could not attack the findings of the lower Court on the evidence. But he argued that the Subordinate Judge found an entirely different case from that set up by the claimants. The claimants claimed occupancy tenancy on the ground that the village is an estate. The Subordinate Judge did not find occupancy tenancy. If he could have found it, he would have found it and should have found it. But obviously it was impossible for him to do so.
19. There being no evidence in the evidence of the claimants either about the village being an estate or about any kind of occupancy tenancy, the Subordinate Judge could not find in favour of occupancy tenancy. On that finding the learned advocate argues that the petitions ought to have been rejected and the Subordinate Judge ought not to have found a different case for the petitioners from that set up by them in their petitions. This is an irregularity which justifies interference in revision. But even apart from that, even on the findings the findings being merely that the petitioners were in possession of the suit lands before the death of the father and that they were wrongfully ejected in execution, without anything more, the lower Court's order cannot be sustained He argues that either the ejectment was on 24th November or it was on 2nd December. If the petitioners were absent from the scene of execution and therefore they were not ejected on 24th November (vide Kooherlakota Venkata Krishna Row v. Vadrevu Venkatappa  27 Mad. 262, but only on 2nd December-this is the case of the petitioners-then the petitioners were not ejected in execution. The dispossession of the tenants was much later than the delivery and Order 21, Rule 98 and 100, do not apply at all. The Subordinate Judge has no jurisdiction to pass an order under Order 21, Rule 100. The petitioners have their general remedy in law if they were wrongfully dispossessed.
20. But taking the other alternative that the Subordinate Judge meant to say that they were dispossessed on 24th November, though it is opposed to the plaintiff's case, and that the finding is binding on the High Court, the amin's report, Ex. A shows that the amin and the decree-holder were obstructed on the 24th by defendant and his men. No right of theirs consistent with the plaintiff's title was ever set up on that date; and only to such persons, i.e., persons who have rights of their own and who are not bound by the decree, does Order 21, Rule 98, apply. It cannot help tenants of the judgment-debtor who are not occupancy tenants. I think these contentions are well founded. But the learned advocate for the respondent argues that Mr. Varadachariar's contentions are technical, that in revision technicalities ought not to be allowed to prevail and defeat substantial justice, that though the petitions of the claimants in the lower Court were inartistically drafted the substance is that they were tenants of the land and, even though any occupancy tenancy is nob found, they will at least be tenants from year to year and that they ought not to be ejected because the two brothers were quarrelling. I entirely recognize the fairness of this contention provided it applies to the facts of this case. Seeing there are regularities justifying interference provided the interest of justice require it, I am willing to look into the matter a little more deeply. I asked the learned advocate whose tenants the petitioners were, assuming that they were really tenants. The learned advocate answered that they were the plaintiff's tenants and in support of this suggestion he referred to the statement in P. W. 1's evidence that he was paying cist at Rs. 6 per year to Subbarayudu's widow after his death. There is no such statement to help all the other petitioners.
21. Of course the learned advocate suggested that all of them were plaintiff's tenants paying cist after the father's death. So that, it comes to this: that the plaintiff through his next friend filed a suit in 1926 to recover lands which were really in his own possession through his tenants but to eject his brother alleging that the brother was in possession, the brother never suggesting in his written statement that the lands were in the possession of the tenants and not in his possession. This farce of an original suit and an appeal is being carried out merely for the purpose of getting rid of the occupancy right set up by these tenants, and the learned advocate said that the plaintiff may have given counter-evidence to rebut the statement of P. W. 1, that rent was being paid to the mother. At this stage it was pointed out that the decree-holder was compelled to adduce his evidence first and then the claimants followed.
22. The learned advocate would not admit the fact until there is something on the record to support it. The affidavit filed by the petitioners in connexion with the stay petition, the allegations which were repeated in the revision petition and which remain uncontradicted to this day, was then relied on by the petitioner's advocate. The respondent's advocate then found the helplessness of his position. He suggested that it is possible that no rent was paid to any person and that the tenants were in possession of the lands only as tenants of whoever may ultimately turn out to be the lawful owner, and they were not interested in the quarrels between the two brothers. The situation is therefore this: this aspect of the case which turned up at the end is only an aspect which turns up on an exhaustive analysis of the case before me and the situation was arrived at only after being driven from position to position. - This aspects was never suggested before the lower Court. Even the Subordinate Judge in his finding beyond saying that the petitioners were in possession of these items, since the death of the father, does not say anything more. He does not say that they were in possession as tenants from year to year. He does not say that they were in possession merely as tenants of some kind. He does not say that their possession was as tenants of the plaintiff.
23. Obviously he gave no weight to the statement in the deposition of the claimants' first witness that rent was paid to the widow of Subbarayudu. He does not say that the petitioners are in possession as tenants of whoever may turn out to be the lawful owners bona fide and that they are disinterested in the quarrels between the brothers. On the finding of the Subordinate Judge and the other irregularities in the case, it is clear to me that this is not a case of persons bona fide in possession seeking protection from ejectment on account of quarrels between two other persons. If I am satisfied in this case that the claimants are tenants in possession of the lands, willing to be tenants of whoever may turn out to be the lawful owner, indifferent to the quarrels between the landholders taking no sides but anxious to protect their own tenancy and complaining that in the guise of quarrels between two brothers they ought not to be wrongfully ejected, I would not interfere in this revision petition.
24. But if on the other hand I am satisfied that, taking advantage of their not being parties, the defendant's men are now set up some time after the execution proceedings as an afterthought to put forward a case of tenancy, to put a further spoke in the wheel, and to prevent the decree-holder from reaping the benefit of his decree, I ought to interfere and set aside the lower Court's orders.
25. Having regard to the material irregularities in the enquiry before it, namely (1) a different case being made out and (2) the decree-holder being compelled to start his case, and having regard to the fact that the only obstruction made on the 24th was by the defendant and his men, there being not even the faintest suggestion of some persons claiming to be tenants of the plaintiff, (and seeing that, even they are tenants, they are bound by the decree not being found to be, occupancy tenants) having regard to the petitioners case itself that they were ejected on 2nd December, i. e., otherwise than in execution which was finished on 24th November, having regard to the stage in filing the petitions and having regard to the findings of the Subordinate Judge itself, which is very vague and which I am not bound to read as finding that specific case in which only the claimants can succeed. I am satisfied that this order of the Subordinate Judge ought to be set aside. Even if one is to suppose, as is now suggested before me, that some claimants are plaintiff's tenants or tenants of the lawful owner, it is only one man, P. W. 1, that can be so protected. The others have given no evidence as to their ejectment or tenancy. Seeing that all the claimants have made one case, and have not suggested even dissimilar cases, I think P. W. 1 also ought to fail. His is the only case about which I felt some hesitation.
26. The result is I set aside the orders of the Subordinate Judge. The petitioners will have costs here and in the lower Court in one case. No costs in the others.