Richard Garth, C.J.
1. I confess I have had some doubt during the arguments whether this case comes within the principle which has been so frequently acted upon in this Court, and of which the case of Sattyabhama Dassee v. Krishna Chunder Chatterjee I.L.R. 6 Cal. 55 forms an example.
2. But on a closer investigation of the facts, and having regard to the way in which the defendants have framed their defence in the present suit, I am satisfied that it does come within that principle.
3. In the year 1877, one of the four defendants, who had registered himself as the owner of the property in the place of his deceased father, the former owner, was sued for rent by the plaintiff in respect of his, the plaintiff's share of this very land; and the defendant's answer in that suit was a denial of the plaintiff's title, and an assertion that he (the defendant) and his father had a lakeraj title to the property.
4. It is perfectly true that in his written statement in that case he also alleged that the land was so imperfectly described in the plaint, that he did not know for what rent the plaintiff was suing; but there was evidently nothing in that point, because there was no question at the trial as to the identity of the land in dispute any more than there has been in this suit. Any insufficiency of description, therefore, could not have misled the defendant.
5. It then appears that for some time before this former suit was brought, the plaintiff and his co-sharers had not obtained rent from the defendants, although their predecessors had done so in former years; when, therefore, the defendant in that suit denied the plaintiff's title, and set up a lakeraj title in himself, the plaintiff thought fit to proceed no further with his suit but he withdrew it, with the intention of bringing a fresh suit, for khas possession.
6. But before he brought this fresh suit, he and his co-sharers obtained a formal partition of the property; and he is now solely entitled by virtue of that partition to the particular area in the estate in respect of which he now sues for ejectment; and he brings his suit against all the four defendants, who claim under the same title.
7. The lower Appellate Court has dismissed the suit upon the ground that the plaintiff's co-sharers should have been joined as co-plaintiffs, but I cannot understand upon what principle, because, since the partition, the plaintiff and his co-sharers have had no joint interest in the property, and the area, which the plaintiff now seeks to recover, belongs to himself alone, and his co-sharers have no interest in it.
8. Had the suit been for rent, it might have been different; because then, notwithstanding the partition, the obligation to pay rent would, in the absence of any separate collection, have been to the plaintiff and his co-sharecs. But here the plaintiff sues to eject the defendants as trespassers from land which belongs to him alone; and to have joined his former co-sharers in such a suit would have been nothing short of a misjoinder of plaintiffs.
9. The real question in the case, which has been argued before us here, appears to be this: whether, in consequence of what the one defendant did when he was sued by the plaintiff in the year 1877, or in consequence of the defence which has now been set up in this suit, the plaintiff has any right to treat all the defendants as trespassers.
10. The point, I confess, which has rather weighed on my mind throughout the discussion has been, whether the three defendants, who were not sued in 1877, ought to be made answerable for the conduct of their co-defendant, so as to forfeit with him their rights as the plaintiff's tenants; and if those three defendants in their defence to this suit had contended that they were the plaintiff's tenants, and that he could not sue to eject them without a proper notice to quit, I should be much disposed to hold that they had a good defence on that ground.
11. But instead of that line of defence these defendants are now urging here up to the very last the selfsame defence, which the one defendant raised in 1877; and taking that into consideration, I cannot doubt that what the one defendant did in the former suit was really the act of all the four and that he was in truth, as the registered owner, defending the suit on behalf of them all.
12. They now moreover set up an adverse title in their written statement. They say, and they have endeavoured to establish throughout, that they have a lakeraj (rent-free) title to the property.
13. This point has been found against them; and it being also found that formerly their predecessors in title did pay rent to the plaintiff or to his predecessors in title, it seems to me that the plaintiff's case is completely made out.
14. I have already said that I think the Court below was wrong upon the point of non-joinder of plaintiffs, and I consider that the plaintiff is entitled to recover the property in question. There appears to be no claim made here for mesne profits.
15. The judgment of the lower Courts will therefore be reversed, and the plaintiff will have his costs in all the Courts.
16. In accordance with this decision the Appeal No. 2142, which is a cross appeal by the defendants, will be decided in favour of the plaintiff.
17. That appeal will, therefore, be dismissed with costs.