1. This is an appeal by the defendants in a suit for rent. The defendants resisted the claim on the ground that there was no relationship of landlord and tenant between the parties. The Courts below have found this allegation well founded in substance, but still they have decreed the claim.
2. In 1824, the predecessor of the plaintiffs transferred to the predecessors of the defendants a share of the lands. The result of the transaction was that the parties thereupon became co-owners, and it is inconceivable that the plaintiffs can treat the defendants as their tenants. Mr. Justice Newbould has found that the plaintiffs and the, defendants are co-ordinate owners in possession, but nevertheless, he has made a decree for rent in favour of the plaintiffs against the defendants as if plaintiffs were superior holders and the defendant held a subordinate position. The plaintiffs-respondents, have conceded that neither law nor logic can justify this view, bat they have taken refuge in the contention that, for many years past, the parties have understood their mutual relation to be that of landlord and tenant. It is manifest, however, that the parties cannot have a mutual relation in law which is contrary to the true state of fasts; if the facts show, as they undeniably do in this case, that the parties are co-ordinate in position, they cannot be treated in law as if they were superior and subordinate holders respectively. To test the position we invited the respondents to state the incidents of the tenancy, if it was assumed that there was a tenancy between the parties. Mr. Guha, who appeared for them, frankly stated that it was an extremely difficult question to answer, for undoubtedly it is by no means an easy task to define the incidents of a tenancy which has no existence either in fact or in law. Another test, equally efficacious, is to ask, whether the plaintiff have an estate in reversion immediately expectant on the termination of the lease. Mr. Guha confessed that, if the so-called tenancy came to an end, the plaintiffs-respondents would not be entitled to take possession of the land. We are consequently of opinion that there is no relationship of landlord and tenant between the parties, that the appeal must be allowed, and that the suit, framed as a suit for rent, must be dismissed with costs in all the Courts.