N. Chatterjea, J.
1. The lands in dispute together with some other lands belonged to two brothers Gauri Kant and Kashi Kant. Their rights were purchased by one Uma Kant who also was their brother. On the death of Uma Kant his son granted a lease of the lands to the plaintiff one of the sons of Gauri Kant. He sues for possession of a moiety of the lands alleging that he is in possession of the other moiety. The defendant No. 2 is the widow of Kashi Kant. She sold an eight-anna share of the lands to the defendant No. 1 and took a sub-lease from the latter and is residing in the huts standing on the land.
2. The defence is that the lease was granted in the name of the plaintiff for the benefit of his father and his aunt the defendant No. 2, and that plaintiff's brothers not having joined with him as plaintiffs the plaintiff alone could not maintain the suit and that the suit was barred by limitation.
3. The Court of first instance holding that the plaintiff was the benamdar of his father and aunt and that the suit was barred by limitation dismissed the suit.
4. On appeal the lower Appellate Court held that the lease was not for the benefit of the defendant No. 2, but that as the plaintiff was the benamdar for all his brothers he could not maintain the suit and accordingly confirmed the decree of the Court of first instance.
5. The plaintiff has appealed to this Court and it has been contended on his behalf; first that the plaintiff himself having an interest in the property and his brothers having been made defendants and not having questioned the exclusive title of the plaintiff, a decree should have been passed in his favour; second that the defendant No. 2 having been found to have no title, she or the defendant No. 1 cannot resist the plaintiffs suit as the lease stands in his name, third that the defendant Nos. 3 to 5 having appeared in this Court through a pleader and given their consent to a decree being passed in plaintiff's favour, a decree should be passed and at any rate the case should be sent back for making them co-plaintiffs, fourth that at all events the case should go back for determining plaintiff's share or for giving a decree for joint possession to the plaintiff.
6. h regard to the first contention it appears that the balance of authority in this Court is in favour of the view that a benamdar as such is not entitled to maintain a suit for recovery of possession of property of which he is merely a benamdar. See Mohendra Nath Mookerjee v. Kali Prasad Johuri 30 C. 265 : 7 C.W.N. 229 and the cases cited therein. But it has been urged that the decisions of the Calcutta High Court which lay down that a benamdar cannot maintain a suit for possession are all cases in which the plaintiff was a mere benamdar for other persons and had himself no interest in the property at all and as in the present case the plaintiff has some interest in the property the principle laid down in the said cases should not be applied to the present case. Here the lease, according to the findings of the lower Appellate Court, was granted in the name of the plaintiff for the benefit of himself and his brothers the defendants Nos. 3, 4 and 5 who are in the same mess with him.
7. plaintiff, therefore, might be considered as a person holding the land on his own behalf as well as for his brothers, had he sued for possession without questioning the title of his brothers, and in that view the case might be distinguished from the cases where the plaintiff is a mere benamdar and has no title whatever to the property. But the plaintiff in his plaint denied the title of his brothers. He distinctly stated that his brothers have no interest in the lease and that they had been allowed as a matter of favour to reside on the land. The plaintiff, therefore, set up an exclusive title in himself to the entire property and denied the title of his brothers who were made pro forma defendants in the suit, and in the fifth prayer in the plaint the plaintiff prayed that if the pro forma defendants denied his title, a decree might be passed against them for khas possession by declaring his right and for other reliefs as prayed for against the principal defendants. He himself, therefore, invited the Court to decide whether he is the sole owner. The case made by the plaintiff has, however, been found to be false and I do not think in these circumstances the plaintiff alone should be allowed to maintain the suit for recovery of the entire property, merely because he is interested in the property along with his other brothers. It is true that plaintiff's brothers have appeared in the Court through a pleader who has given his consent to a decree being passed in his favour. But this is after the lower Appellate Court has found that their aunt has got no interest in the property. The brothers did not appear so long as there was any possibility of the Courts holding that the lease was for the benefit of their aunt also. And if all the real owners must join as plaintiffs, I do not see how the consent of the brothers can entitle the plaintiff to a decree for possession of the entire property. The first contention, therefore, fails.
8. regards the second contention the defendants who are in possession, though found to have no title, are entitled to resist the claim for possession on the ground that the suit cannot be maintained unless all the real owners join in the suit as co-plaintiffs. Although the lease stands in the name of the plaintiff alone, it is open to the defendants in a suit for ejectment to show that he alone is not entitled to the property, and it has been found by both the Courts below that he is not.
9. The second contention also accordingly fails.
10. The third contention also has no force. I have already dealt with the question as to whether plaintiff can be given a decree because his brothers have in this Court given their consent to a decree being passed in his favour. As regards the prayer for joining them as co-plaintiffs I do not think that under the circumstances of the case that should be allowed at the present stage. The plaintiff distinctly denied the title of his brothers in the plaint, and though the question was raised he insisted in both the Courts below upon his own exclusive title, and did not before this ask the Court to join them as co-plaintiffs. I think under the circumstances the prayer of the plaintiff should not be granted at this stage of the case.
11. As regards the last contention, it appears that there was no prayer in the plaint for determination of shares or for joint possession. The plaintiff alleged that he is already in possession of an eight-anna share of the property, and wanted to recover possession of the other 8 annas. It is pointed out on behalf of the respondents that the plaintiff is already in possession of more than what his share would be as he is one of four brothers. But it does not appear what his share is in the property. Whatever that my be having regard to the pleadings, it is too late now for him to ask this Court to send back the case to the first Court for determination of shares, or for a decree for joint possession. Besides, the plaintiff is in exclusive possession of an eight-anna share. He cannot, therefore, ask for a decree for joint possession of the remaining eight-anna share.
12. The appeal, therefore, fails and is dismissed with costs.