Salil Kumar Datta, J.
1. This is an appeal by the defendant against a decree passed by the City Civil Court, Calcutta. The plaintiff instituted the suit on the following allegations. The plaintiff obtained a settlement from the pro forma defendant Kashinath Auddy, the managing trustee to the Trust Estate of Gurudas Auddy deceased, of a piece and parcel of vacant land of premises No. 94, Dharamtalla Street, Calcutta, measuring more or less 120 sq. ft. as delineated in the plan attached to the plaint, on 15-4-65 at a monthly rent of Rs. 25/- according to English calendar month. She also obtained delivery of possession of the demised area on the said date. The defendant who is also a tenant under the pro forma defendant in respect of other portions' of the said premises, squatted on the suit land on the morning of 16th April, 1965 and failed to remove his materials stacked at the site in spite of requests both , of the plaintiff and the pro forma landlord. Accordingly, the suit was instituted on 2-9-65 claiming (a) a decree for declaration that the plaintiff is a tenant in respect of the suit land and has right to use and occupy the same and (b) a decree for ejectment of the defendant from the suit land and (c) mesne profits.
2. The defendant contested the suit by filing a written statement contending, inter alia, that the plaintiff was not entitled to institute the suit. It was alleged that the pro forma defendant was not the sole managing trustee in respect of 94, Dharamtalla Street belonging to the Trust Estate of Gurudas Auddy which had four trustees, each working for one year by rotation in terms of order dated 4-6-56 in Suit No. 2289 of 1953, commencing from 15th June, 1956. The managing trustee was to work under the supervision and control of the trustees under the Deed of Trust. The pro forma defendant had made this collusive settlement without knowledge, consent or approval of other trustees and this settlement was not accepted by other trustees. The defendant denied that the plaintiff ever was a tenant in the suit land and the plan showing the suit land was imaginary and had no reference to locale and no delivery of possession was ever made to the plaintiff. The defendant was in exclusive occupation of 793 sq. ft. of vacant land on the east, apart from 222 sq. ft. of vacant land on the west, and the remaining 123 sq. ft. was the common passage for the tenants of the premises. The suit land, shown in plan, was in exclusive possession of the defendant as part of his tenancy under the Trust Estate since last 20 years where he had been carrying on his business as Bright Spray Painting at the said premises. The defendant had three garages on the east and two rooms on the west of the premises in two separate tenancies under the Trust Estate at a rental of Rs. 100/- (old rate Rs. 90/-) and Rs. 32/- (old rate Rs. 20/-) respectively. Except the' common passage the entire vacant land in the compound was included under the defendant's tenancies whereof as already stated, 793 sq. ft. appertained to the tenancy on the east and 222 sq. ft. appertained to the tenancy on the west. The vehicles of the customers of the defendant were received, cleaned and painted and other operations were done at the vacant land on the east as aforesaid till work was completed. The pro forma defendant with the motive of destroying defendant's business had taken recourse to the purported settlement in favour of the plaintiff. The suit accordingly should be dismissed. A written statement was filed by the pro forma defendant who supported the plaintiff's case of tenancy under him and it was stated that the defendant wrongfully prevented the plaintiff's possession in the suit land under her tenancy.
(After considering the evidence in paras 3 and 4 on record the judgment proceeded).
5. The trial Court rightly disbelieved the case of the defendant that he was originally a Sub-tenant, as such case was not made in the written statement and his tenancy, it was held, was created by Ext. AA (5) which was duly proved. Defence case of receipt creating his tenancy wherein, it was stated, the tenancy was described by the area was not filed or produced in the Court. The defendant did not take any local investigation for determining the extent of his tenancy and it was held that the suit land never appertained to his tenancy. The suit land being vacant it was used by the defendant and his customers when they liked and merely keeping of cars and vans of his customers for repair and spray painting would not mean that the suit land was comprised within his tenancy. The trial Court also believed the evidence of the plaintiff's husband and of the pro forma defendant that she was given possession of the suit land on 15-4-65. It was further held that the plaintiff had valid tenancy and the suit was accordingly decreed. The present appeal is against this decision.
6. Mr. S. C. Mitter, learned advocate for the defendants has urged several grounds for the appeal. He has firstly submitted that the trial Court completely misunderstood the topography of the premises in thinking that there were two common passages on the two sides of the suit land which vitiated his finding. His conclusion that the rent receipt was withheld was also wrong and incorrect. It was further contended that the trial Court should have found that the vacant land including the suit land was within the tenancy of the defendant while the tenancy agreement, Ext. AA (5), was not duly proved nor admissible as the defendant denied the thumb impression. It however appears to me that Ext. AA (5) is a genuine document with the thumb impression of the defendant. A comparison of the thumb impression on Ext. AA (5) and on the written statement would clearly indicate the same, This document states in detail the accommodation, namely, a portion of the compound measuring 544 sq. ft. in front of the garages as forming part of the tenancy of the defendant and as I have already indicated, he did not take out any commission in support of his contention that the suit land was included within his tenancy. I agree with the finding of the trial Court that the mere user of the suit land as alleged by him would not make the portion or any part thereof as being under his tenancy. It is unfortunate that the defendant did not take out any local investigation for determining the extent of his tenancy. It must therefore be held that the defendant has failed to prove or establish that the suit land was comprised within his tenancy.
7. Mr. Mitter next contended that the trial Court committed an error in law in decreeing the suit without any finding that the plaintiff had title to the suit land as tenant and the plaintiff, it is settled law, must succeed on her own title in an ejectment proceeding. He referred to the decision in the case of M.M.B. Catholicos v. M. P. Athanasius reported in AIR 1954 SC 526 in support. Elaborating his argument he submitted thai in the order of this Court in the administration suit the managing trustee alone had no power or authority to settle any properly by lease or otherwise and powers to the managing trustee were confined to the mere collection of rents and disbursement of income and further the managing trustee was only to manage subject to the control of trustees. He referred to Lewin on Law of Trusts, 15th Edition, page 190, which lays down that the office of a co-trustee is a joint one and they must execute their duties jointly. He has also referred to Section 48 of Trusts Act in support. He referred to some decision also which will be considered presently. The settlement to the plaintiff by the pro forma defendant, according to Mr. Mitter, was beyond his power and accordingly there was no settlement in law.
8. Mr. B. C. Dutt, learned advocate appearing for the plaintiff, contended on the other hand that the powers given to the Managing Trustee by the High Court's order included the power to settle the suit land. He further contended that this plea in this form was not taken in the trial Court and nor even in the memo, of appeal here and should not be allowed to be urged. It was further contended that a lessee in possession could sue in trespass after commencement of the lense and he referred to Woodfall's Law of Landlord and Tenant. 25th Edition, p. 885 in support. The learned advocate for the pro forma defendant adopted the argument of Mr. Dutt
9. In Man Mohan Das v. Janki Pro-sad, reported in AIR 1945 PC 23 the Privy Council referred to the law as stated by Lewin already referred to and it was observed that this doctrine was applicable to India so that a mortgage by a de facto manager and trustee would be ineffective in conveying a valid claim to the suit property. In Lewin's Trust at page 190 it has been laid down as follows.
'In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting' trustee, but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved.'
Section 48 of the Trusts Act is to the following effect.
'48. Co-trustees cannot act singly.--When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.'
The objection of Mr. Dutt against this contention itself is not borne out by the records. Paragraph 6 of the written statement would show that the defendant relied on the order of the High Court which provided that the managing trustee would act under the supervision and control of the trustees under the Deed of Trust. The Issue No. 2 is also as follows.
'Has the plaintiff any right to sue or cause of action for the suit? Has the plaintiff valid tenancy right in the suit land?'
The defendant has also filed the certified copy of the relevant order of this Court. It was not necessary for him to put any question on the plaintiff's or pro forma defendant's witnesses as it was for the plaintiff and the pro forma defendant to establish that the pro forma defendant had the right to grant the settlement. Unfortunately the trial Court did not at all advert to this aspect in his judgment and he decided the issues Nos. 2, 3 and 5 together in a summary way. As has been rightly contended by Mr. Mitter the trial Court should have first found the title of the plaintiff to the suit land and her right to sue before giving a decree.
10. The relevant portion of the High Court's order is as follows:
'Clause 2. Subject to the supervision and control of the trustees he (Managing Trustee) shall manage the trust property in accordance with the provisions of the Deed of Trust and also subject to such directions as are given herein and which may be given by this Hon'ble Court from time to time.
CL 4. The Managing Trustee shall in the first instance collect rents, issues and profits of the Trust properties, make the necessary disbursements including payment of rates and taxes and including repairs of the Trust property and thereafter the Managing Trustee shall pay to the beneficiaries other than the parties of this suit the respective amount which are payable to them under the Deed of Trust.
Clause 11. In each the Managing Trustee shall act under the supervision and control of the Trustees under the Deed of Trust.'
It may he mentioned that the Court's order provides that each of the trustees will work as managing trustee by rotation for one year each from 1-7-56. It was the case of the plaintiff and pro forma defendant that the settlement was made on behalf of the Trust estate and there is no evidence or even suggestion that the other trustee has concurred or ratified the settlement. Creation of the tenancy in the context of the West Bangal Premises Tenancy Act or the Calcutta Thika Tenancy Act whichever is applicable to the tenancy, practically amounts to an alienation of the property as the tenant acquires valuable rights under the said statutes and shall not be ejectable except under very stringent conditions. It is inconceivable that a managing trustee should have such power of lease as an element of administration which even, according to the High Court's order, is subject to the supervision of the trustees. It is to be noted that the trust deed had not been produced.
11. For all these reasons I am of opinion that the pro forma defendant had no power or authority under the order of this Court to settle the suit land to the plaintiff as purported to have been done by accepting the letter of tenancy of the plaintiff, Ext. AA (3). For all these reasons I am of opinion that the plaintiff had no valid tenancy, on the basis whereof a declaration was sought for and the eviction of the defendant was asked for.
12. As to Mr. Dutt's contention that a lessee in possession is entitled to sue a trespasser, it has been held by the trial Court on evidence that possession was given to the lessee on 15-4-65 and she was dispossessed on 16-4-65. According to the pro forma defendant, possession was given on 1st April, 1965 and also on 15-4-65 when the land was demarcated. Similar is the evidence of plaintiff's husband. But in the plaintiff's letter of 17-4-65, Ext. AA (4) or in the pro forma defendant's letter of 23-4-65, Ext. AA (2) there is no mention of possession being delivered. It is thus obvious that no possession was given to the plaintiff as stated. Demarcation of area might have been made but that or even possession as alleged will not give any right to the plaintiff to sue in absence of a legal title and in the state of affairs noted above it could not be said that the plaintiff even had a possessory title in the suit land as contemplated and protected in Somnath Burman v. S.P. Raju, : 2SCR869 by a mere casual act of demarcation and delivery of possession as claimed.
13. For all these reasons I am of the view that the plaintiff had failed to establish the tenancy on the basis whereof he would be entitled to a decree.
14. There is another fatal defect about the description of the suit land. The suit plan is not according to scale and has been drawn without any fixed point. The following is the description given in the plaint.
'The Schedule of the suit land.
All that piece and parcel of land measuring more or less 120 sq. ft. at 94 Dharamtolla St., P.S. Taltala, Calcutta and butted and bounded on the north by the main entrance of 94 Dharamtolla Street Calcutta; East by open land being a portion of 94 Dharamtolla St., Calcutta; South by the portion of 94 Dharamtolla St., Calcutta; West by open land being a portion of 94, Dharamtolla Street, Calcutta.'
15. The decree on the basis of this description is in executable and should not have been passed in this form.
16. For all these reasons, the appeal succeeds and is allowed. The judgment and decree under appeal are set aside and the plaintiff's suit is dismissed.
17. The parties, in the circumstances, will bear their own costs throughout.
18. It is said by Mr. Bose that the defendant in pursuance of the decree passed by the trial Court and the connected Civil Rule has been depositing certain amount month by month. He will be entitled to withdraw the same amount on proper application being made to the appropriate Court on notice to the parties concerned.
19. Let the operation of this decree be stayed for a period of six weeks as prayed for by the plaintiff.