1. The plaintiff is the appellant. The suit was one for ejectment of defendants Nos. 1 and 2 from certain land in the Municipality of Tamluk. The defendants purchased the land in execution of a money decree against the original tenant. The plaintiff is one of four brothers Rajani, Rakbal, Madhub and himself. Rakhal is defendant No. 4 and the plaintiff has now acquired the interest of Rajani and Madhub, so that be is the landlord in respect of 12 annas and Rakhal of 4 annas. The first Court dismissed the suit on the ground that the defendants were entitled to notice and the suit was defective, the notice not having been given by all the landlords. The notice in question was a 15 days' notice. The Appellate Court also took the view that the plaintiff could not succeed as all the landlords had not jointed in the notice. It appears that in a previous Suit No. 1236 of 1913 an attempt had been made by all the brothers to eject the defendants Nos. 1 and 2 from the land. That suit ended in Rakhal compromising the matter with the defendants, whereupon the present plaintiff and his other brothers withdrew from the suit with permission to bring a fresh suit. The present suit was subsequently filed and it has been disposed of in the manner which I have stated.
2. The appellant contends that the defendants are trespassers and, therefore, he is entitled to re-enter. It is obvious that it is necessary for his success to prove that they are trespassers and he claims to have done so on any one of three grounds, (1) that the interest of the previous tenant was not transferable, (2) that the tenancy was terminated by the notice given in the previous suit of 1913, or (3) that it was terminated by the notice in the present suit.
3. As regards the first point, namely, that the original tenant's interest was not transferable, it is the common case of both parties that the tenancy is governed by the Transfer of Property Act. Therefore, whatever the character and value of the tenancy may have been, it was transferable. Therefore, it cannot be said that the defendants Nos. 1 and 2 were trespassers on the ground that they purchased a non transferable interest.
4. Then the question is whatever the tenancy was terminated by the notice that was given in the suit of 1913 That depends on various questions such as length and sufficiency of the notice, and they depend on questions of fact. When the suit was brought, it was contested on the ground that proper notice had not been given. In the present suit facts have not been investigated to show whether the notice alleged to have been given on that occasion was a sufficient notice. The point must fail on this short ground that the facts not having been investigated, it cannot be said that the tenancy was then terminated by notice.
5. That brings me to the third point as to whether the tenancy was terminated by notice in this case. The notice as regards the length of time was apparently sufficient. The point is whether the plaintiff is entitled to give notice by himself or whether for the notice to be effectual it was necessary for the co-sharer landlord to join with him in giving notice. It is said that there has been a separation of the tenancy and that separation is referred to the time of the suit of 1913. It is argued that the separation was brought about by the compromise entered into between Rakhal and the defendants. That compromise petition in effect stated this, that Rakhal recognized the defendants as tenants with occupancy rights and that he would collect rent separately. It is conceded by the learned Vakil for the appellant that mere separation of the collection of rent would not create a separation of the tenancy. His point is that by this compromise some higher right was created in the tenant than the right which had existed previous to the suit, and that creation of a higher right amounted to a separation of the tenancy There are cases in this Court which show that where a tenant has allowed some one of the co sharer landlords to treat with him separately it has the effect of a separation of the tenancy, and it is obvious that if one of the co sharer landlords has created higher rights in the tenant in respect of his share from that time there would be a separation of the tenancy. If it can be shown that by this compromise higher rights were created in the tenant and that there was a separation of the tenancy in consequence of that, it is obvious that the plaintiff would by separate notice be entitled to terminate the tenancy in respect of his share in the land. The point then is whether this compromise did have the effect of separating the tenancy.
6. It is argued for the respondent that the right which it is suggested is created by the compromise and which is spoken of as a right of occupancy must be a permanent right of some kind or other, and that if it is so the right could only be created by a registered instrument. That argument is met by this argument that the compromise related to matters which came within the scope of the suit and, therefore, did not require registration. Assuming for the purpose of argument that the compromise did deal with matters within the scope of the suit there is a further difficulty in the way of the appellant, and that is this, to prove that the compromise created some higher right in the tenant than that which existed before, it would be necessary to have findings of fact showing what were the tenants' rights before the suit in order to compare his position before the suit and his position after the compromise. The case has not been considered in either of the lower Courts from this point of view and the result is that those facts which are necessary to be examined in order to ascertain what the position of the tenant was previous to the suit of 1913 have not been gone into. I am asked to remand the case to the lower Court for examination of these facts. But I do not think that I should be justified in doing that at this stage.
7. The position then is that it is not shown that the tenant has any rights higher than those he had before the suit in 1913, and as a necessary corollary it is not shown that there has been any division of the tenancy. That being so, it is obvious that the plaintiff was not entitled to give notice in respect of his own share. That is the effect of various decisions of this Court which point out that where a tenant has been inducted by all the landlords no single landlord, or group of landlords, representing only some of the shares is entitled to give notice to terminate the tenancy of a particular share. It would be different where the person sought to be evicted was a trespasser. It is sufficient to draw attention to one case, namely, that of Bhikharee Ram Mahoori v. Dheekeswar Pershad Narain Singh 7 C.L.J. 483 : 35 C. 807,where a number of cases bearing on the point are considered.
8. Then it was argued that the Court ought not to have dismissed the suit altogether bat ought to have given the plaintiff a decree for partition. In the plaint it was alleged that there had in fact been a partition The plaint was amended and in the amended portion of the plaint the plaintiff asked for a decree for khas possession in respect of the undivided 12 annas in case it be found that there was no partition, and 'if it be necessary' there should be a partition. The plaintiff having come to Court with an allegation of a state of facts which is found to be untrue, I do not think he can now be allowed to have a partition which he starved by saying bad already taken place, especially when he does not definitely ask for it, but only suggests it should be made if necessary. Finally the Appellate Court was not asked to order a partition, as is clear from the judgment in which it is stated that only the two points discussed were argued.
9. The appeal is accordingly dismissed with costs.
10. The cross-objection has not been pressed and is dismissed.