1. The facts in this case are stated fully in the lower Appellate Court's judgment: and I can deal shortly with the second defendant's appeal against its decree granting a declaration, because on the memorandum of objections, I hold that the decree should have been for possession.
2. The second defendant's first contention is that a declaration should not have been granted, because none was asked for in the plaint: and Virasami Gramani v. Ayyasvami Gramani 1 M.H.C.R. 471 and Janaki Ammal v. Narayanasami Aiyar 37 Ind. Cas. 161 are relied on. Those cases, however, must be distinguished on the ground that in them the relief specifically asked for did not include a declaration, whilst here the prayer is not only for possession, but also for the establishment of the invalidity of the kanom on which the second defendant based his right to hold the property. The fact that plaintiffs paid the additional Court-fee for a declaration, only when called on to do so, cannot affect the validity of their claim. This objection to it, therefore, fails. It is not shown how they became aware of the title set up by the second defendant adversely to them at any time earlier than six years before they sued. Their suit was, therefore, in time. No other objection to the lower Appellate Court's decree has been sustained by the second defendant. His appeal is, therefore, dismissed with costs.
3. Plaintiffs' memorandum of objections is first against the lower Appellate Court's omission to grant a declaration in respect of Exhibit III as well as Exhibit I. It is admitted that the same considerations apply to both documents. If necessary, plaintiffs would be entitled to succeed on this point.
4. Their main objection is, however, to the refusal to them of a decree for possession. The position is shortly that, as the lower Appellate Court found, one Mammad obtained a lease from plaintiffs entitling him to hold for five years from the date on which he recovered possession from the second defendant. He succeeded against the second defendant in two Courts, recovering possession and obtaining from plaintiffs Exhibit XI, entitling him to retain it until March 1916; and he has not, the lower Appellate Court found, relinquished his right under that document. He, however, was ousted by second defendant in execution of his decree in the second appeal, with which the litigation between them closed. The lower Appellate Court refused possession to plaintiffs on the ground that the right to it at the date of suit was not with them, but with Mammad.
5. The law relating to the landlord's right to sue a trespasser in ejectment during the currency of a lease is dealt with exhaustively in the judgment of Sundaram Aiyar, J., in Ambalavana Chetty v. Singaravelu Odayar 15 Ind. Cas. 146, and the exposition of it therein, so far as it is relevant for the purpose of this case, is consistent with the later decisions in Narainasawmy Naidu v. Yerramali Ram Krishnaya 7 M.L.T. 119 and Somai Ammal v. Vellayya Sethurangam (1915) M.W.N. 12 ; 16 M.L.T. 532. I accept the result of these cases, at least in so far as it amounts to a recognition of exceptions to the general rule that a plaintiff suing in ejectment must establish an unqualified right to immediate possession; and of one such exception as constituted by the case of a landlord suing, like plaintiffs, to enable himself to fulfil his contract to give or restore possession to his tenant. So far as the decision in Molamal Illoth Krishnan Nambudri v. Secretary of State 4 Ind. Cas. 30 conflicts with this conclusion, I would respectfully decline to follow it; and in Ramanadan Chetti v. Pulikutti Ssrvai 21 M.K 288 the special circumstance that the tenant colluded with the trespassers and acquiesced in their invasion of his right is a sufficient ground of distinction from the present case, in which on the findings, it must be taken that the plaintiffs' objection to Mammad is unimpaired. The lower Appellate Court in dealing with Somai Ammal v Vellayya Sethurangan 26 Ind. Cas. 347 has referred to one defence contemplated therein as available to the trespasser, that he is entitled to possession under a title paramount to that of the landlord and tenant, and to the second defendant's contention that he holds still under Exhibit C from the original kanomdars of plaintiffs' tarwad, whose redemption originates these disputes. But this is unsustainable. For the tenancy under Exhibit C ended in 1903, and the second defendant has throughout these proceedings based his right to possession only on Exhibit I. In these circumstances the conclusion justified by authority is that plaintiffs, when they sued, were entitled to claim possession. The memorandum of objections must, therefore, be allowed in this respect, the lower Appellate Court's decree being set aside and that of the District Munsif restored with costs throughout.
6. I agree and have little to add. The decision in Ramanadan Chetti v. Pulikutti Servai 8 M.L.J. 21 is frequently quoted as authority for the broad proposition that in no circumstances can a landlord evict a trespasser when he is not himself entitled to immediate possession owing to an outstanding lease or mortgage to another but, in my opinion, that decision does not go quite so far, but should be applied only to the facts of the case it decides. In that case the tenant was colluding with the trespasser, and consequently the tenant, who was really entitled to possession, was unwilling to allow the landlord to recover. The possession of the trespasser was in a sense possession of a licensee under the tenant, and against merely a licensee, a landlord naturally has no right to possession. When, however, as in the present case, the possession of the trespasser is adverse both to the landlord and the tenant, the position is entirely different, and I can see no reason why a landlord, who is bound to give and restore possession to his tenant, and is liable in damages if he fails to do so, should be precluded from evicting a mere trespasser in order to put himself in a position to perform his obligations. The fact that the tenant refuses, or is unwilling, to sue jointly with the landlord ought not to be allowed to prejudice the rights of the latter. The view taken by me is supported by the cases reported as Ambalavana Chetty v. Singaravelu Odayar (1912) M.W.N. 669, Somai Ammal v. Vellayya Sethurangam 26 Ind. Cas. 347 and Narainasawmy Naidu v. Yerramali Ram Krishnaya 5 Ind. Cas. 479, in the former of which the correctness of the decision in Ramanadan Chetti v. Pulikutti Serrai 21 M.K 288 is also doubted.