R. Sadasivam, J.
1. The appellants in the Second Appear filed the suit for injunction on the ground that they are cultivating tenants of the first defendant-respondent, under Madars Act XXV of 1995 as amended by Act XIV of 1956, and as such they are entitled to remain in possession of the suit properties. The plea of the first defendant is that the plaintiff committed default in payment of rent for fasli 1366 and did not have the means to pay the same when a demand was made by him for arrears of rent and so the first plaintiff surrendered possession of the leasehold lands on 20th April, 1957. Though the suit lands included S. No. 189/2 and S. No. 201/1, the plea of the first defendant is that they do not belong to him and this plea has been accepted by the Courts below and there is no dispute about it. The Courts below have referred to the remaining lands alone as the suit lands. Ever since the alleged surrender, the first defendant claims to have been cultivating the suit lands as pannai lands with the help of the second defendant in whose favour he has executed a power of attorney. Defendants 2 and 3 supported the claim of the first defendant and denied having interfered with the possession of the suit lands claimed by the plaintiffs. The trial Court accepted the truth of the surrender put forward by the first defendant. But, on appeal, the learned District Judge reversed the finding of the trial Court. This Court, in Second Appeal No. 985 of 1960, remanded the appeal as it was not satisfied with the finding of the lower appellate Court negativing the truth of the oral surrender. The subsequent District Judge who tried the appeal accepted the truth of the surrender and hence the plaintiffs have preferred this Second Appeal.
2. Sri G. Ramaswami, learned Advocate for the appellants, relied on several facts to show that the surrender pleaded by the first defendant could not be true. If we were dealing with this matter as a trial Court, or as the first appellate Court, we would have great hesitation in accepting the truth of the surrender. The burden of proof is on the first defendant to prove the truth of the surrender. Having regard to the provisions of the Cultivating Tenants Protection Act, it is difficult to believe that the first plaintiff as a tenant would have voluntarily surrendered his leasehold interest, particularly when the extent of the lands comprised in the lease is 32 acres 93 cents. The first defendant came forward with a plea that the plaintiffs owed arrears of rent to the extent of Rs. 5,000. He filed O.S. No. 128 of 1957, in the District Munsif's Court, Tiruvaiyaru, to recover the said arrears of rent, but it was decreed only for a sum of Rs. 2,405. According to the first defendant, he went from Madras to Thanjavur and met the first plaintiff there on 20th April, 1957 and asked him to pay the arrears of rent of Rs. 5,000 within one week, that the first plaintiff asked for remission, that he refused to give any remission and that thereupon the first plaintiff stated that he was not willing to be a tenant. This is the surrender put forward by the first defendant. In O.S. No. 128 of 1957 on the file of the District Munsif s Court, Thiruvaiyaru, to recover arrears of rent, the present first defendant gave evidence that he met the first plaintiff herein only on 19th April, 1957. But in his evidence in this suit he would state that by mistake he gave the date as 19th April, 1957 in the rent suit. The finding of the learned District Judge is that the date of surrender, 20th April, 1957, mentioned in the notice Exhibit A-6 must be correct as it was made when the fact was fresh in the memory of the first defendant. The first defendant is an Advocate. The reasons given by the learned District Judge in paragraph 8 of his judgment are hardly convincing. Thus there is no meaning in the learned District Judge saying that if really the first defendant had met the plaintiff on 19th April, 1957 and had not met him subsequently and was in fact at Madras on 20th April, 1957, as suggested in the cross-examination of the first defendant, it is unlikely that the first defendant would have stated in Exhibit A-6 that the surrender took place on 20th April, 1967. Exhibit A-4 is a notice dated 22nd April, 1957 calling upon the first plaintiff to surrender possession of the thope in R. S. No. 92/7 measuring 2 acres 41 cents and another punja land in R. S. No. 33/2-A measuring 73 cents covered by the lease in favour of the plaintiffs to one Shanmugham on the ground that the properties were sold to him. If really the surrender pleaded by the first defendant is true, there was no necessity to send such a notice on 22nd April, 1957 as the surrender is alleged to have taken place even two days earlier. The concurrent findings of the Courts below about the truth of the surrender cannot be interfered with in second appeal as the same relate to a question of fact, though to our minds, it is opposed to the weight of evidence and probabilities of the case. So long as the Courts below had some material, however inadequate to establish the above finding, it is not for this Court to interfere with the same in Second Appeal.
3. Even assuming the truth of the surrender pleaded by the first defendant, it is not valid for more than one reason. In Woodfall on Landlord and Tenant, 26th Edition, Volume I, page 918, Section 2004, it is stated that a surrender could be by unequivocal giving and acceptance of possession. It is stated that an agreement by landlord and tenant that the term shall be put an end to, acted upon by the tenant's quitting the premises, and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law. In Mulla's Transfer of Property Act, Fifth Edition, at page 735, it is stated that a surrender may be oral if accompanied with the delivery of possession. Narasimma v. Lakshmana I.L.R (1890) . Mad. 124, Warishkan v. Daulat Khan I.L.R. (1903) 25 All. 77, and Pusaram v. Deorad (1947) A.M. 188 (correct reference is A.I.R. 1947 Nag. 188), are given as authorities for the view. The above decisions do not specifically lay down the above principles, though it could be inferred from them. Thus in Waris Khan v. Daulat Khan I.L.R. (1903) 25 All. 77, it is stated that a tenant who wishes to relinquish a holding and to be no longer liable for the rent of the same can do so by a notice in writing only, and by relinquishing possession of the whole of the land under his lease. It is pointed out in the decision that Section 31 of the North-Western Province Rent Act, does not say that such a tenant cannot relinquish a portion of his land in any other way, but that he does so at his peril and may continue liable for the rent, as the zamindar may refuse to take over a portion only of the holding; but where the zamindar takes over a portion of the holding and re-lets or occupies it, the tenant is no longer liable for the rent of the portion so let or occupied. It is clear from the evidence in this case that according to the first defendant the first plaintiff met him at Thanjavur and merely stated that he was not willing to be a tenant and asked the first defendant to take possession of his lands and that the first defendant accepted it. But the first defendant did not state that he went with the first plaintiff to the village where the suit lands are situate or that the first plaintiff delivered possession of the lands. In fact the first defendant returned to Madras on the same day, there was a dispute about the possession of the lands and there was an enquiry by the Police in that connection.
4. The plaintiffs are cultivating tenants under the first defendant and the alleged surrender is by the first plaintiff alone. In Leek and Moorlands Buildings Soc. v. Clark (1952) 2 All E.R. 492 it has been held that in the absence of express authority it was not competent for one of two joint tenants to surrender rights held jointly, and, therefore, the sale by the husband of the premises to C, without the wife's authority did not terminate the joint tenancy, and, as against the husband and wife, the plaintiffs were not entitled to possession. Sri K.N. Balasubramaniam, the learned Advocate for the respondents, relied on the decision in Doe D. Aslin v. Summersett (1803) 1 B. & Ad. 135, cited at page 495 of the above decision, as supporting his contention that a joint tenancy could be put an end to by a notice to quit served and signed by only one of the joint lessors. This .case can be clearly distinguished and in fact it has been distinguished in the above decision. The ratio of the decision appears from the following sentence at page 140:
Upon a joint demise by joint tenants (i.e., the lessors in that case) upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please; and as soon as any one of the joint tenants gives a notice to quit, he effectually puts an end to that tenancy...
The case related to a notice to quit in respect of a periodic tenancy. A periodic tenancy continues from period to period unless the notice agreed to or implied by law is given. But if one of two joint lessees who hold the whole wished it not to continue beyond the end of a period, it might well be held that it did not continue into a new period. That would happen only if all, that is, the joint lessees, should so please. If one considers a lease to joint lessees for a term certain with a right of renewal, it would be obvious that both must joint in requiring a renewal. In Bejoy Chand v. Kali Prasanna : AIR1935Cal752 , a Bench of the Calcutta High Court has held that it is necessary in order to bind even a joint tenant that the notice must be addressed to and served on him in one of the ways mentioned in Section 106 of the Transfer of' Property Act and that the service of notice on one of the joint tenants would not bind the other joint tenants on whom notice was not served. ' Cultivating tenant' as defined in the Cultivating Tenants Protection Act includes the heirs of a cultivating, tenant. It could not be said that if one or more heirs find it inconvenient to cultivate the land and seek avocation elsewhere, the tenancy would come to an end even as regards the other cultivating tenants in actual possession of the land. Thus, the alleged surrender of the lease by the first plaintiff cannot obviously bind the second plaintiff. The learned District Judge has observed that the second plaintiff has not sent a notice to the first defendant impeaching the validity of the surrender by the first plaintiff. Obviously this reasoning is unsound. The second plaintiff is not a party to the surrender and it cannot bind him.
5. The main and important question for consideration in this suit is whether the plaintiffs were in possession of the suit lands on the date of suit to entitle them to obtain a decree for injunction. If the plaintiffs had been dispossessed by the defendants, even wrongfully, their remedy is under the Cultivating Tenants Protection Act to seek restoration of possession. The learned Subordinate Judge has framed an issue as to whether the plaintiffs were in possession of the suit properties on the date of suit and found against the plaintiffs. The learned District Judge who originally tried the appeal, allowed the appeal. But the learned District Judge who heard the appeal after remand, has not even framed a point for determination about the most important question, whether the plaintiffs were in possession of the suit properties on the date of suit. It is true that in course of the judgment, he has given a finding that there is ample evidence to prove that after 20th April, 1957 the first defendant was in possession of the suit lands through the second defendant. Hut this finding cannot be sustained in the absence of a specific point for determination about it. In the absence of a specific point for determination about it the learned District Judge could not have bestowed his thought on the relevant question and considered the case in all its aspects. Further, the truth and validity of the surrender are also relevant circumstances in deciding that question.
6. Having regard to these facts, we are constrained to remand the second appeal, though reluctantly in view of the fact that the litigation was started as early as in 1959. The decree and judgment of the learned District Judge are, therefore, set aside and the appeal is remanded to the District Judge for fresh disposal according to law. The learned District Judge shall frame a specific point for determination as to whether the plaintiffs were in possession of the suit lands on the date of suit and give a finding on that point and on the other points for determination already framed by him and dispose of the appeal on its merits without being embarrassed by observations of the Court in this judgment or the prior judgment of remand on questions of fact arising in the appeal. The costs of the parties shall be provided for in the revised judgment to be passed by the learned District Judge after remand. The Court-fee paid by the appellants shall be refunded to them.