B.K. Mukherjea, J.
1. These four connected rules arise out of as many actions in ejectment commenced by the same plaintiffs against different defendants for recovery of possession of certain plots of land on the allegation that the defendants were trespassers. The Subordinate Judge who heard the suits did not pass any decree or final order in any one of them; but by his order dated 80th August 1940 he has stayed all these suits under the provisions of Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act (9 of 1940). It is the propriety of this order for stay that has been challenged before us in these rules.
2. To appreciate the points in controversy, it is necessary to set out the material facts briefly. The plaintiffs in all the suits who are the petitioners before us, are the patnidars of mahal lot Khupi appertaining to touzi No. 712/1 of the Bogra Collectorate, and they purchased the patni from Maharaj Bahadur Singh by a kobala dated 26th April 1928. There is a darpatni under this patni which was held in all material times by two ladies named Kunja Bala and Sarat Kamini, who are the heirs of one Gadadhar Das to whom the darpatni previously belonged. There being default in the payment of rent due by the darpatnidars to the plaintiffs, the latter instituted a rent suit against the two ladies, being rent suit No. 5 of 1931, in the Court of the Subordinate Judge at Bogra and got a decree. In execution of this decree, the darpatni taluk was put up to sale, and it was purchased by the plaintiffs themselves on 20th December 1935. The sale was confirmed on 20th January 1936 and the plaintiffs took delivery of symbolical possession of the mahal through Court on 15th February 1936; It is stated in the plaint that after that purchase the plaintiffs came to know that several persons were in occupation of various plots of land within the darpatni, and purported to hold them as tenants under the darpatnidars. Their interests, if any, constituted according to the plaintiffs, incumbrances within the meaning of Section 159, Ben. Ten. Act, and the plaintiffs had these incumbrances annulled in accordance with the provision of Section 167 of the Act. As these persons refused to vacate the lands in spit of the notice under Section 167, Ben. Ten. Act, the plaintiffs instituted five suits in ejectment against them in the Court of the Subordinate Judge at Dinajpur, and these were suits Nos. 5, 6, 8, 9 and 10 of 1938 of that Court. In all these suits the plaintiffs' allegations were substantially the same. Their case was that the leases in favour of the different sets of defendants were created by the darpatnidars in contravention of the express terms of the darpatni lease, which expressly provided that the darpatnidars would not be able to grant settlement of lands without the consent of the patnidar and also at a low rent. These leases consequently were not binding on the patnidars. It was averred, in the second place, that even if the darpatnidars had not acted in excess of their authority in granting these leases to the defendants., the leases being incumbrances within the meaning of Section 159, Ben. Ten. Act, were annulable in law and that the plaintiffs actually annulled them by following the procedure Laid down in Section 167 of the Act. The defendants therefore were in the position of trespassers and were bound to vacate their lands.
3. The defendants in all the five suits appeared and resisted the plaintiffs' claim for eviction. The defence in all the suits was practically the same. It was contended, in the first place, that the plaintiffs were not sixteen annas patnidars, and the decree in execution of which the darpatni was sold was not a proper rent decree, but had the effect of a money decree merely. The defendants denied that the leases granted to them by the darpatnidars were in contravention of the provisions of the darpatni pottah, and their case was that the interests were protected interests within the meaning of Section 160, Ben. Ten. Act, and were not incumbrances which could be annulled in law. They further denied service of any notice under Section 167, Ben. Ten. Act. On these pleadings, ten issues were framed, and they were common issues in all these five suits which were heard together. So far as suit No. 5 is concerned, the trial Judge decided all these issues, and as a result of the findings arrived at dismissed the plaintiffs' suit. We have been told that an appeal has been taken against this decision to the Court of the District Judge at Dinajpur, and this appeal is still pending. So far as the other four suits are concerned, a point was taken by the, defendants' pleader in course of the hearing that the tenancies held by the defendants in these suits being non-agricultural tenancies within the meaning of Bengal Act, 9 of 1940, the suits could not be further proceeded with and ought to be stayed under the provision of Section 3 of the Act. This contention found favour with the learned Subordinate Judge who decided only one matter in connexion with these four suits, namely, as to whether the tenancies created by the darpatnidars in favour of the defendants were in excess of the powers conferred upon the lessors by the darpatni potta. The answer to this question was given in the negative, and the Subordinate Judge being of opinion that the defendants became, by operation of law, tenants of the plaintiffs as soon as the latter purchased the darpatni in the rent sale, stayed all further proceedings in these four suits under Section 3, Bengal Non-Agricultural Tenancy Act. It is against this order of stay passed in the four suits that these four rules were obtained.
4. Dr. Sen Gupta, who appears on behalf of the plaintiffs, has contended before us that as on the face of the allegations made in the plaint, it was clear that the plaintiffs wanted to evict the defendants as trespassers and not as tenants, the suits were not suits for ejectment of non-agricultural tenants as contemplated by Section 3 of Bengal Act, 9 of 1940 and could not be stayed under Section 3 of the Act. The argument is, that for the purpose of exercising the powers under Section 3, Non-Agricultural Tenancy Act, the Court should look to the case as made by the plaintiff in his plaint, and if on the plaint, as it stands, the suit is one for evicting a trespasser, the Court is bound to proceed with the suit, and if after hearing the evidence, it comes to the conclusion that the defendant is a tenant and not a trespasser, the suit should be dismissed and not stayed. Mr. Sen who appears for the opposite party contends, on the other hand, that the allegations made in the plaint are not at all conclusive, and even though the suit purports to be one for ejecting a trespasser, if the Court on hearing the evidence comes to the conclusion that the defendant is a tenant and an agricultural tenant within the meaning of the Act, it has got to stay further proceedings. As the question is likely to arise in many cases, we think it necessary to examine the relevant provisions of the Act carefully and indicate the procedure which is to be followed in cases of this description. Section 2, Non-Agricultural Tenancy Act, gives the definition of a non-agricultural tenant. Section 3 then lays down that:
Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant other than a suit or proceeding for ejectment on account of non-payment of rent by such tenant shall be stayed for the period during which this Act continues in force.
5. In order to attract the operation of this section, it is necessary that the suit must be one for ejectment of a non-agricultural tenant, and ejectment must be sought for on a ground other than non-payment of rent. Strictly speaking the right of a landlord to recover immovable property from his tenant arises when the relationship of landlord and tenant has ceased between themselves, and the tenant has lost his right to remain in possession of the property. The word 'tenant', therefore, means here an ex-tenant whose tenancy has been determined in one of the ways recognized by law, and it is the determination of the tenancy that constitutes the cause of action of the suit. The section places one restriction in this respect, namely, that the claim for eviction should not be based upon mere non-payment of rent. These words are somewhat ambiguous, and my learned brother Mitter J. was constrained to interpret this expression as referring to a suit for ejectment of a tenant whose rent was in arrears, though the right to sue was based on other grounds and not upon non-payment of rent: Purnendu Nath v. Narendra Nath : AIR1941Cal302 . The interpretation seems to us to be somewhat farfetched. The words undoubtedly are unhappy, but if they have got any meaning, in our opinion they cannot but refer to that class of cases where under the terms of the lease itself the lessee forfeits his tenancy by reason of non-payment of rent. As a relief against forfeiture in such cases is provided in Section 114, T.P. Act, the Legislature probably thought it proper to exempt this class of cases from the operation of Section 3, Non-Agricultural Tenancy Act, It is not, however, necessary for us to express any final opinion on this point in the present case.
6. Now, a suit for ejectment may be one to eject a tenant on the ground that the defendant was a tenant under the plaintiff and his tenancy has subsequently ceased to exist, or it may be one to eject a trespasser on establishment of the plaintiff's title. In the former case, if the plaint itself shows that the defendant is a non-agricultural tenant, and ejectment was not sought on the ground of non-payment of rent, no difficulty arises, and the Court is bound to stay the suit under Section 3 of the Act at its very inception. If any dispute arises as to the character of the tenancy, the Court is bound to take evidence, and if it comes to the conclusion that the defendant in fact is a non-agricultural tenant, then also the suit must be stayed. If on the other hand, the suit purports to be one for ejecting a trespasser, different considerations arise. As the plaintiff does not admit the defendant to be a tenant the suit cannot be stayed in limine. The Court must proceed to hear the suit in the ordinary way and take evidence. Supposing that after taking evidence the Court forms an opinion that the defendant is really a tenant and an agricultural tenant within the meaning of the Act, is he bound to stop the proceedings forthwith, and refuse to proceed any further? The answer to this question would, in our opinion, depend upon the fact as to whether after the Judge arrived at such a finding, the suit could be treated as one for ejectment of a non-agricultural tenant within the meaning of Section 3 of Bengal Act, 9 of 1940. In other words, it is not enough to find that the defendant is a tenant and not a trespasser. It must be further found that the suit as it stands could be regarded as a suit to evict the defendant as a tenant on the ground that the tenancy has been determined in any lawful manner.
7. Ordinarily, when the plaintiff starts with a specific case in the plaint and fails to establish that case, the suit is bound to fail, but there are exceptional cases where even though the defendant is found to be a tenant and not a trespasser as alleged by the plaintiff, the plaintiff can still ask the Court to pass a decree for ejectment against the defendant, if in fact it is admitted or proved in the case that the defendant's tenancy, if any, had come to an end prior to the institution of the suit. If the Court allows the plaintiff to convert a suit for possession against a trespasser into one for ejectment of a tenant, it is certainly bound to stay it under Section 3 of Bengal Act 9 of 1940. But if, on the other hand, the suit is one which must necessarily fail, if the defendant is found to be a tenant and the plaintiff does not want to treat it as a suit for ejectment of a tenant, the Court should dismiss the suit on the finding that the plaintiff failed to prove his case, and the question of stay will come, if and when the plaintiff institutes a fresh suit against the defendant, seeking to eject him on the ground that the tenancy which was found in his favour in the previous suit had since then been determined. In the present cases, the plaintiffs sought to eject the defendants as trespassers pure and simple. The cases under which the defendants purported to hold the lands were challenged as not binding upon the plaintiffs, and they were alleged further to have annulled the incumbrances under the provisions of Section 167, Ben. Ten. Act. The Court held on evidence that the leases were binding on the plaintiffs inasmuch as the darpatnidars did not exceed their authority in granting such leases to the defendants.
8. The Court did not consider whether the leases were or were not encumbrances which were annulable in law, and were or were not in fact annulled by the landlords purchasers under Section 167, Ben. Ten. Act; although in deciding issue 1 in connexion with suit No. 5, the Subordinate Judge did in fact come to the conclusion that the sale was not a rent sale within the meaning of chap. 14, Ben. Ten. Act. If the sale was not a rent sale, the operation of Section 167, Ben. Ten. Act, would necessarily be excluded. Be that as it may, even after the Court had recorded a finding that the defendants were tenants under the plaintiffs by operation of law, the suits could not in our opinion be treated as suits for eviction of tenants on a ground other than non-payment of rent as contemplated by Section 3, Bengal Non-Agricultural Tenancy Act. The plaintiffs cannot and do not say that even if the defendants are tenants, the tenancies have been determined in any manner recognized by law. They take their stand exclusively on the allegation that the defendants are trespassers, and if they fail on that case, the suits in our opinion cannot but be dismissed. We do not agree with Mr. Sen that when a tenure is purchased at a rent sale, a sub-tenant under the defaulting tenant becomes automatically a tenant under the purchaser and remains a tenant till the tenancy is put an end to by a notice under Section 167, Ben. Ten. Act. The purchaser at a rent sale acquires the tenure itself subject to all protected interests and with right to annul all incumbrances. If he does exercise his powers of annulling encumbrances within the period Laid down by law, the position of the encumbrancer will be that of a trespasser from the very moment of the sale. He can be treated as a tenant only if the purchaser does abstain from exercising his powers of annulling encumbrances or in fact the time for exercising the power has expired.
9. In our opinion therefore the procedure followed by the Subordinate Judge was not right, and these rules must be made absolute. The order of stay made by the Subordinate Judge is set aside and the cases are remitted to the same officer in order that all the other issues in connexion with the suits may be properly decided. We are told that the officer who tried the suits is now holding the position of an Additional District Judge of the same district, and we direct that all these suits should be heard by him. The Court after recording its findings on all the material issues raised in the suits will dispose of the suits in accordance with the directions given above and in accordance with law. We make no order for costs in these rules. Further costs on remand will abide the result. The findings already recorded by the Subordinate Judge in his judgment must stand. Let the records be sent down as early as possible.
10. I agree.