Richard Garth, C.J.
1. This is a suit brought by the plaintiff, a zamindar, against three sets of defendants. Her claim is twofold (1st), for rent, cesses, and interest, amounting altogether to upwards of Rs. 5,000; and (2nd), for khas possession of the property in respect of which the rent is claimed.
2. The history of the case is this. Previously to the year 1870 the property, which is the subject of the suit, was held by a person named Rajendra Gir Gossami. He, and his predecessors before him who belonged to some religious order, had held the property in question, under settlements made from time to time with the zamindar, and the last of these settlements, made with Rajendra Gir, dated the 26th of Choitro 1267 (9th April 1861), was for a term of five years, from the commencement of 1268 (13th April 1861) to the end of 1272, (12th April 1866) at an annual rent of Rs. 674-0-1. In that settlement there was a provision to this effect: 'if failing to pay the rent of the said jote, instalment per instalment (as it should be demanded), we allow the same to fall into arrear, then you will take out of our hand the said jote, put another tenant in possession, and have the rent realized from him.'
3. Then it appears from the evidence, that in the year 1868 Rajendra Gir, in consequence of what he considered a disgrace attaching to him, left the place and the property, without making any arrangement with regard to the payment of his rent; and he never paid any rent afterwards. He remained away for two or three years, and when he came back, he never made any attempt to resume possession of the jote, nor did he pay any rent to the zamindar.
4. The consequence was, that the zamindar, finding the property deserted, entered upon it under the provision in the lease and realized the rents directly from the ryots for some time, till at length he made a fresh settlement of the property with the defendant No. 1, who took it at an advanced rent of Rs. 975 a year. He held it at that rent for six years (which was the term of the lease), and it then seems very difficult to say who really was in possession. The defendant No. 1 says that he was; but the other defendants, each claiming under Rajendra Gir, laid claim to and asserted their right and possession, the defendant No. 2 being Rajendra's principal chela, and the defendant No. 3 his eldest son by a concubine. Each of these defendants laid claim to the interest which Rajendra had previously possessed.
5. So far as we can gather from the evidence, there has been a struggle ever since between these three defendants. One or other of them has been obtaining rents (as they could collect them) from the different ryots, and it is very difficult to say which of them has been really in possession; but this is certain, that between them these three persons have been setting the zamindar at defiance, and have entered into no agreement with her for payment of rent.
6. In this state of facts the lower Court has come to a decision which we cannot uphold. The Subordinate Judge has decided that the defendant No. 2, who is the chela of Rajendra, is the tenant in possession of the property in Rajendra's right; and that Rajendra's interest never in point of fact came to an end. From the fact of Rajendra and his predecessors in title having been in possession of the tenure for a great many years, and of its being a transferable tenure, he considers it to be of a permanent character. He further holds that by custom the tenure has descended from each succeeding Gossami to his chela; and he finds that the defendant No. 2, as being the chela of Rajendra, became entitled, upon Rajendra's death, which occurred in the year 1878, to the interest which Rajendra had in the property.
7. He then finds that Raj Chundra, the defendant No. 2, is rightfully in possession as Rajendra's successor, and that he is entitled to hold at the old rent which Rajendra paid; and he gives the plaintiff a decree for rent at the old rate for the period in respect of which the claim is made.
8. We think it impossible to uphold this finding, because whatever was the true nature of Rajendra's tenancy, we think that the zamindar put an end to it in accordance with the clause of re-entry in the lease.
9. The clause in the lease which I have just read provides that if the rent of the jote falls into arrear, the zamindar is to be at liberty to re-enter upon the property, and put any other tenant in possession, and realize rent from him.
10. Now, considering that Rajendra actually deserted the property, left the neighbourhood for upwards of two years, and never afterwards paid any rent, it seems to us impossible to say, that the zamindar was not at liberty to take advantage of this clause in the lease, and to re-enter upon the property.
11. He did re-enter, and he did hold khas possession for some time, receiving rent from the occupying ryots. He then granted a lease of it to the defendant No. 1 at an increased rent. That seems to us to have put an end to Rajendra's interest, and to have effectually debarred Rajendra's chela or son from any right to it in the future.
12. That being so, we find the state of things to be this: That during the time for which the plaintiff seeks to recover rent in this suit, the defendants Nos. 1, 2, and 3 were all more or less in possession of the property without any right to it; consequently they were all trespassers. The defendants Nos. 2 and 3 had no right there at all, and the defendant No. 1, who might have been considered as holding on after the expiration of his lease, if he had been in actual possession, can hardly be made liable for rent upon that footing when the other defendants were in possession as much as he was. They are, therefore, all trespassers upon the property.
13. Then the difficulty is, what relief the plaintiff is entitled to in this suit. She sues all the defendants for rent, and for ejectment. We may, no doubt, treat the defendants as trespassers and eject them, but then we can give the plaintiff no mesne profits.
14. If the plaintiff had sued for mesne profits as well as for khas possession, we could have given her a decree; but she has not asked for mesne profits; and we should have great difficulty in giving her mesne profits after the commencement of this suit, because we do not know who has been in possession since that time.
15. But the learned pleader for the appellant contends that, although none of the defendants are liable for any definite amount of rent, we are at liberty, in accordance with certain decisions to which our attention has been called, to give the plaintiff a fair compensation for the use and occupation of the land; and that the plaintiff is entitled to this against all three defendants, who have all been in joint possession of the property.
16. One case to which he has referred us in support of this view is Ranee Lalun Monee v. Sona Monee Dabee 22 W.R. 334. That was a case where there was a difficulty in giving the plaintiff a decree for rent, properly so called; but the Court thought the plaintiff entitled to some compensation from the defendants for the use of the land, and the case was sent back to the lower Court to ascertain the amount. Mr. Justice Jackson, in giving judgment, says: 'If these parties (meaning the defendants) are in possession, they make themselves tenants by use and occupation of the land.'
17. The other was a Full Bench case of Lukhee Kant Doss Chowdhry v. Sumeeruddi Lusker 13 B.L.R. 243: 21 W.R. 20. There the landlord sued a ryot for rent alleged to be due under a kabulait, but when the case came to trial, the plaintiff' was unable to prove the kabuliat. Then the question arose, whether, as the defendant had occupied the land under the zamindar, the latter was entitled to recover some rent or compensation for the use of the land, the amount to be ascertained by the Court; and the Judges held that he was so entitled, and that the case should be remanded to the lower Court to ascertain the proper amount.
18. As the plaintiff is willing in this case to waive the trespass and to treat the defendants as her tenants, we think that upon the authority of these cases we may give the plaintiff' a decree for use and occupation. It is a difficult thing to say what amount we should give. Properly speaking, we ought to have further evidence upon that point, but having regard to the evidence already before the Court, we think we may safely give the plaintiff' as against all the defendants the same sum which the lower Court has awarded against the defendant No. 2; and we also give the same sum which the lower Court has given for interest upon the amount decreed as from the commencement of the suit.
19. We fire, of course, not in a position to give the plaintiff a decree for ejectment. We could only have given her such a decree if she had elected to treat the defendants as trespassers; as she has elected to treat them as tenants, she can only put an end to their tenancy by a notice to quit. She cannot treat them as tenants and trespassers in the same suit.
20. The plaintiff will have her costs in this Court from all the defendants.