1. This appeal arises out of a suit for joint khas possession in respect of the plaintiffs' share of the land in dispute.
2. It appears that the plaintiffs and the pro forma defendants held the lands in jote right, the plaintiffs owning the largest share (14 annas and odd). The principal defendants obtained an under raiynt lease for a term of years from the plaintiffs and the pro forma defendants. The term of the lease expired in 1910. The plaintiffs purchased the share of the pro forma defendants on the 29th January 1912 and thus became the owners of the 16-annas share. The present suit was instituted for ejectment of the principal defendants on the 30th August 1912.
3. The defence of the defendants was that they paid to the pro forma defendants their share of the rent after the expiry of the lease, and could not be ejected.
4. The question is whether the acceptance of rent in respect of their share by the pro forma defendants had the effect of converting the defendants into tenants under the plaintiffs as well.
5. We are of opinion that the lower Appellate Court was right in holding that a new tenancy was created only with respect to the pro forma defendants' share and that no tenancy was created with respect to the original share of the plaintiffs.
6. It is contended before us that the defendants were holding over. But a tenant can be said to be holding over if there is acceptance of rent by all the co-owners, or if they otherwise assent to the continuance of the tenancy by their words or conduct. Here in the present case shortly after the expiry of the term, all the co-owners joined in bringing a suit for ejectment of the principal defendants as trespassers, and although the suit was withdrawn, it was so done with liberty to bring a fresh suit. The present suit was also instituted within a short time after the withdrawal of the first suit and nothing was done on behalf of the plaintiffs to indicate that they assented to the defendants holding over. If, therefore, there was any holding over, it was only with respect to the share of the pro forma defendants.
7. The learned Pleader for the appellant said that he could not contend that one of the co owners could force a tenant upon the other co owners after the expiry of the lease, but that these co-owners could not get khas possession without service of notice to quit on the defendants. But if there was no tenancy (and after the expiry of the lease, there was none) as between the principal defendants and the' plaintiffs, no question of notice can arise.
8. We are accordingly of opinion that no notice to quit was necessary to be- served upon the defendants and that the plaintiffs are entitled to get joint khas possession (in respect of their original share) of the land.
9. The question, however, whether the defendants have acquired any right of occupancy, was not gone into by the Court of first instance as that Court dismissed the suit on other grounds. The lower Appellate Court has accordingly remanded the case for a trial of the issues Nos. 6 to 9.
10. It is contended before us that the question of-notice ought to be gone into if the Court finds that the defendants are non-occupancy raiyats, but no such case was set up. The only case which was set op was that the defendants, although they were under-raiyats, had right of occupancy and if the Court below finds that they had right of occupancy, no question of notice would arise.
11. The appeal is dismissed with costs. We assess the hearing fee at one gold mokur. The cross appeal is not pressed and is also dismissed.