1. Khoodiram Dey, the defendant No. 4, it the tenant of the plaintiffs. In execution of a decree for arrears of rent the plaintiffs attached 3 bighas of land which form the subject-matter of the present suit, as well as other lands, on the ground that this was the property of the judgment-debtor and held by him as their tenant. The other defendants intervened, stating that the 3 bighas had been sold to them by Khoodiram Dey and were situated in Chorghara, which belonged to another and neighbouring Zemindar.
2. The Court in execution ordered the 3 bighas to be released from attachment on the ground that they were in the possession of the present defendants, the judgment-debtor Khoodiram having no longer any right, title and interest in them. The plaintiffs now sue all these parties, claiming the right to eject the defendants Nos. 1 to 3 on service of notices because they refused to pay the plaintiffs any rent.
3. The case was originally tried in this Court solely on the ground of limitation, and it was then held that the suit was barred under Article 11, Schedule II of the Limitation Act of 1871. On review of judgment the order of the Civil Court in execution was placed before me and I then held, for reasons separately given, that this provision of the law of limitation would not apply, the present suit being governed by the ordinary rule of twelve years limitation. The application for review of judgement was accordingly granted and the case has now been re-heard.
4. It is clear that the plaintiffs would, in no view of their case, be entitled to a decree for ejectment. In their plaint they have stated that these 3 bighas formed portion of the under tenure held by Khoodiram. If this be so, they cannot break up Khoodiram's tenure by declaring that be had no longer any rights to this portion of it although he still held the remainder. It if, however, pressed on us that the plaintiffs having asked for a decree declaratory of their title to these lands as forming portion of their Zemindary, the suit should not be entirely dismissed. The lower Courts have no doubt found this point in favour of the plaintiffs, but such an order can really have no effect, since the Zemindar of Chorghara is no party to the present suit. The plaintiffs have thus rendered themselves liable to have the suit dismissed, but we are disinclined to decide the case in this manner, having regard to the length of time that this matter has been before the Courts. Under the circumstances we will allow the case to be retried, leave being given to the plaintiffs to make the Zemindar of Chorghara a party, but we think that the plaintiffs should pay all costs up to the present time.
5. It will be necessary for the plaintiffs to show that the suit is not barred by limitation, that is to say, that the 3 bighas have, within twelve years next before the date of institution of suit, or rather from the date that they make the Zemindar of Chorghara a party to the suit, formed portion of the tenure of Khoodiram and that they, the plaintiffs, have received rents for these lands as portion of the under-tenure or that the lands have formed a portion of their Zemindari.