1. This is an appeal by the defendants against a judgment and decree of a learned Subordinate Judge of Rangpur, affirming the decree of a learned Munsiff of that place, in a suit brought by the plaintiff-respondents for ejectment of the appellants from two plots (C.S. 2997 and 2999) within the Municipal area, on the ground that the appellants as their under-rayats, had used the land of the tenancy in a manner which renders it unfit for the purposes of the tenancy, within the meaning of Section 155(1)(a), Bengal Tenancy Act. The case of the respondents was that the purpose of the under-rayati was agricultural and that by digging ditches on the land and raising parts of it, notably by allowing two sub-tenants of the under-rayats to construct houses thereon, the land of the tenancy had suffered such misuse as to unfit it for the original purpose for which the korfa settlement was granted to defendant 14 and the predecessors in interest of the other defendants by the predecessors in interest of the plaintiffs.
2. The defence took a number of objections all of which were decided against them. Of the objections taken below, only two require notice here. They are : (a) that, the finding concerning the original -purpose of the tenancy of the appellants is wrong and (b) that, so far as plot 2999 is concerned, the suit is barred by limitation. Many other objections, some of them on legal grounds, were taken in the two lower Courts and also in the memorandum of second appeal to this Court, but Mr. Sanyal for the appellants has limited himself to the two just mentioned. This is one of those cases where by far the larger portion of the arguments has turned on something which was not mentioned in either Court at Rangpur and has indeed not found place in the memorandum of second appeal either. It is in fact the only point of substance, and though, as Dr. Sen Gupta for the respondents concedes, it cannot be overlooked, it is least regrettable that it was not placed before either of the Courts below for consideration and determination. There is no doubt that it should have been raised in the written statement and an issue founded on it.
3. To get rid of the other two points first: las regards (a), this seems to me to be purely a question of fact. The lower Appellate Court has 'treated the matter at great length and in considerable detail, giving full reasons for coming to the conclusion (in agreement with the 1st Court), that the purpose of both the raiyati and the under-raiyati was agricultural. Mr. Sanyal complains that due notice has not been given to the fact that at its inception the land was land which had emerged from the bed of a river which had here dried up and that it is now within the ambit of the Rangpur Municipality. But in fact both these points and a number of others have received due consideration. Charland is, as the learned Judge observes, ordinarily taken settlement of for the purpose of bringing it under the plough, so soon as the soil is fit for cultivation, while it has had to be conceded that in those days (about 1278 B.S. apparently) the land was not included within the Municipality. Apart from this, a large number of witnesses, many of them persons of position, deposed for the plaintiffs, whereas only 2 witnesses, apart from one of the defendants, came forward to support a case that the purpose of the rayati and the under-rayati tenancy (the allegation then was that the latter was a rayati with occupancy rights), was non-agricultural. Even D.Ws. 2 and 3 made statements not inconsistent with the agricultural character of the original tenancy, and it is not possible for this Court to interfere with the concurrent findings of the two Courts on this question of fact.
4. Likewise, with regard to point (b), the question of limitation has on the facts found been decided against the appellants. The point here is that the plot was recorded as 'bhita' in the record of rights finally published 6 years before suit, and from this it was contended that as it came to the knowledge of the plaintiffs at least by that time and as the transformation of an arable plot into a bhita must necessarily impair the original purpose, for which the plot was settled, more than 2 years had elapsed at the time when the action was started since it came to the knowledge of the plaintiffs. This matter has received attention from the Subordinate Judge who writes:
There is no evidence that as result of the conversion of the plot into a bhita, it had been rendered unfit for cultivation...instances of cultivation of bhita plots are not rare.... Their (plaintiffs') case so far as plot 2999 is concerned is that the defdts allowed Syama Charan to make a portion of that plot a part of his homestead by throwing earth thereon in Aswin 1347, The present suit having been brought within 2 years of that date, the question of limitation also does not arise, so far as this plot is concerned.
That is a finding of fact which cannot be interfered with now.
5. The substantial point taken here in argument for the first time, as already indicated, was first treated by Mr. Sanyal as one of nonjoinder, the effect of the non-joinder of the 2 sub-tenants (Syama Charan, or Prasanna, Chattapadhya and Kamakhya Lodh) being, according to Mr. Sanyal, that the decree as passed is anyhow in part infructuous. I am referred to an observation in Rajkeshar Singh v. Shyam Bihari Singh ('27) 14 A.I.R. 1937 Pat. 286 (287), where Das J. observed that a Court will not make a declaration of an abstract right exclusive of practical utility especially when that declaration may not be productive of any benefit to the party obtaining the declaration. The appellate decree runs thus:.Defdt. shall pay Rs. 100 as compensation to the plaintiffs. They shall make the suit lands fit for cultivation by removing the huts and filling up the ditches within 6 months from the date of the decree. In default, they will be ejected and the costs of filling up the ditches and removal of the huts, etc., shall be borne by the Defdts.
6. The suit being one under Section 155, Bengal Tenancy Act, I am of opinion that the subtenants were not necessary parties and they were probably not proper parties either. Section 165 speaks solely of a suit against the tenant, and all the tenants have (as the case now stands) been properly served with notice and brought on record. Clause (a) speaks of the tenant having used the land in a manner which renders it unfit. I do not think that those words are so narrow that they should be taken to exclude a case where the tenant, by sub-letting the tenancy, causes the unfitness to occur: through the agency of sub-tenants. I have been through the evidence in this case and find nothing to indicate that the sub-tenancy was granted with the permission of the landlords of those who granted it. That being so, the sub-tenants are trespassers vis-a-vis the present respondents. The law is now settled that in the case of leases under the Transfer of Property Act, a decree for ejectment secured against the leasee will bind a sub-tenant of the lessee though not a party to the ejectment suit and that he as much as the lessee can be ejected under Order 21, Rule 35 in execution of the decree obtained in an ejectment suit to which he was not a party. See the case in Seik Yusuf v. Jyotish Ch. Banerjee : AIR1932Cal241 . But it is also settled that this principle will not apply to a case under the Tenancy Act Serajul Huq v. Abjal Mia : AIR1941Cal351 . Mr. Sanyal's com-plaint is that the decree, as it stands, fastens vicarious responsibility on the appellants for complying with certain conditions, the fulfilment of which will involve them in the commission even of crime. Dr. Sen Gupta characterizes this plea as a naive one, inasmuch as it amounts to the appellants pleading in bar their own wrong doing, to which Mr. Sanyal retorts that this amounts to an admission that the appellants and their sub-tenants were joint tort-feasors, all of whom should have been impleaded if an effective decree was to be obtained.
7. It is sufficient for the disposal of this appeal that the decree as passed by both Courts should be suitably amended. The suit was in proper form and on the findings as to misuse and as to the purpose of the tenancy, the plaintiffs were obviously entitled to a decree which has the effect of ejecting the tenants if they fail to fulfil the conditions imposed within the time allowed. The misuse is obviously one capable of remedy and it would be wrong to remove all reference to such misuse from the decree. Merely to make the defendants liable for compensation would serve no purpose; the amount might well be paid and the sub-tenants would in all probability not be removable. It is by no means clear from the record which I have examined with some care that the entire area of both the plots is subject to the sub-tenancy; indeed if anything there are indications to the contrary. I think therefore that the decree should be amended. It is not for this Court to prescribe the proper course for plaintiff to pursue against Chatterjee and Lodh. A proceeding under Order 21, Rule 97 may suffice, or possibly a suit under Section 48C, Bengal Tenancy Act, or an ordinary action in trespass. But subject to any legal bar, it is desirable that it should appear from the decree what the exact position of the parties to the suit and of others who were not parties would appear to be.
8. It is therefore ordered that the appeal be dismissed and the judgment of the Courts below affirmed, but the decree appealed against will be amended in the following way:
In place of the last two sentences, the following will be substituted 'So far as any part of the two plots in suit in the khas possession of any of the defendants to this suit, the latter will make the lands fit for cultivation by removing any structures erected by them, filling up ditches and levelling the surface. In so far as any part of the two plots in suit is in possession of the two subtenants of the defendant, the defendant will, if no objection is raised by their sub-tenants or if the sub-tenants do not agree1 to undertake the work themselves, cause the structures to be removed, the ditches to be filled up and the ground levelled on the land of the sub-tenancies. The defendants are allowed 6 months from the date of this decree for carrying out the above operations. In default of due compliance with all these directions they become liable to be ejected in execution of this decree from so much of the land as is in their khas possession and to pay the costs incurred by plaintiffs in restoring this land to a cultivable condition, and so far as the portions in possession of the sub-tenants of the defendants are concerned the plaintiffs are at liberty to seek to eject the said sub-tenants by recourse to such a fresh suit or proceeding as is appropriate and still open to them'. As the main objection was raised in argument in this Court for the first time and it has largely failed, the respondents will get their full costs of this second appeal.