1. We are invited in these Rules to set aside a decree made by the Judge of the Court of Small Causes at Sealdah in a suit for damages for use and occupation of a verandah. The ease for the plaintiff was that he was the owner of the verandah, that the two sets of defendants had occupied the premises, from the 14th April, 1909 up to the 20th September 1909 and were consequently liable to pay compensation for use and occupation. The first defendant contended that fee came into occupation of the verandah as the tenant of the second set of defendants and was not liable. The second set of defendants contended that the verandah in question was part of their portion of the house and that no suit for damages for use and occupation could lie against them. The Small Cause Court Judge has made a decree against the first defendant and dismissed the suit as against the other defendants.
2. We are now asked in Rule No. 490 of 1910 by the first defendant to set aside the decree against him on the ground that upon the admitted facts, he did not come into occupation of the verandah by the leave and license of the plaintiff. We are also asked by the plaintiff in Rule No. 1373 of 1910 to set aside the decree in so far as it dismissed his claim against the second set of defendants. In our opinion the first defendant is entitled to succeed and the Rule obtained by the plaintiff must be discharged. It is clear upon the plaint and the evidence on the record that one Rasik Pandit was the tenant under the plaintiffs and that he let out the property to Abbas, the father of the second set of defendants. Abbas appears to have erected a shed upon the verandah and let it-out to the first defendant Kanai. It is stated that in 1903 Rasik Pandit brought a suit for rent against Abbas which was compromised on the 15th December 1903, and as a result of this compromise, Abbas is said to have given up possession of the property to Rasik Pandit. If this is the true state of things, since the 15th December 1903 Rasik would be the tenant under the plaintiff and the first defendant would be the tenant under Rasik Pandit. The plaintiff alleges that Rasik Pandit abandoned his tenancy on the 12th April 1909, and he asks for damages for use and occupation as against the defendants from the 14th April 1909 to the 20th September following. Now in so far as the first defendant is concerned, it is manifest that he did not come into occupation of the property by the permission of the plaintiff. He was originally brought on the property by Abbas who at that time held under a lease from Rasik Pandit. It is not established that after the abandonment of the property by Abbas on the 15th December 1903 or after the abandonment by Rasik Pandit on the 12th April 1909, the plaintiff agreed to accept the possession of the premises by the first defendant as possession held on his own behalf. Consequently no suit for damages for use and occupation lies against the first defendant because, as observed by Lord Ellen borough in the case of Rochester v. Pierce (1808) 1 Campbell 466, an action for damages for use and occupation does not necessarily suppose any demise. It is enough that the defendant used and occupied the premises by the permission of the plaintiff. We may further observe that it would be clearly unjust to make the first defendant liable for compensation for use and occupation because his case has been that he has paid rent to the second set of defendants by whose predecessor, Abbas, he was originally brought on the property. The second, set of defendants in the written statement filed by them admit that they have been in occupation of the property and have received rent from the first defendant. This by itself would be a sufficient reason for dismissal of the claim of the plaintiff as against the first defendant. The result, therefore, is that the Rule obtained by the first defendant must be made absolute and the decree as against him discharged.
3. In so far as the Rule obtained by the plaintiff is concerned, it is clearly impossible to give him a decree as against the second set of defendants. The case as between the plaintiff and those defendants was not investigated in the Court below. There is nothing in the judgment of the Small Cause Court Judge as regards the relative rights of these parties. The learned Vakil for the plaintiff-petitioner has suggested that the case should be remanded so that the question of title raised by the second set of defendants may be investigated in this proceeding. We are of opinion that we ought not to accede to this suggestion. The question of title should be raised and investigated in a Court of competent jurisdiction which can finally decide the question. Indeed, it is clear that the object of the plaintiff in the present suit throughout has been to obtain indirectly a decision upon the question of title and to recover possession of the property from which, upon the facts patent on the record, it is manifest that he has been dispossessed by the second set of defendants.
4. The Rule obtained by the plaintiff must, therefore, be discharged. It will, however, be open to the plaintiff to bring a suit for declaration of his title to the property and for recovery of possession thereof with mesne profits.
5. We make no order as to costs in either of these Rules.