1. The plaintiffs-respondents in this appeal brought the suit out of which the appeal has arisen, for declaration of their title to a two-third share of the property described in Sch. Kha of the plaint (that is the only item of property in dispute in this appeal), and for ejectment of the defendants. There was in the alternative a claim for declaration of right to receive rent, on the footing that the defendants were, by virtue of an arrangement between cosharers, the plaintiffs and the defendants, under-raiyats in respect of the property in suit. So far as the under-raiyati interest alleged to have brought into existence by virtue of an arrangement was concerned, there was a suit for contribution, suit No. 457 of 1925, brought by the plaintiffs, against the defendants, directly putting the 'matter in issue. The defendants denied in that suit the existence of the under-raiyati, by virtue of any arrangement between cosharers as alleged by the plaintiffs. It was decided in that suit that the story of arrangement set up by the plaintiffs had not been established. As indicated above the defendants denied the existence of the arrangement and the existence of any under-raiyati interest, and that denial was allowed to prevail. The plaintiffs asserted in the present suit that the denial in the previous suit of the existence of the under-raiyati, entitled them to get khas possession of the lands in suit, in regard to which there was an under-raiyati held by the defendants, by virtue of an arrangement. The contesting defendants denied the story of under-raiyati, as they did in the suit of 1925. They asserted that they held the lands in question in equal shares with the plaintiffs, and denied the story of arrangement between them and the plaintiffs then cosharers, of any arrangement as set up in the plaint.
2. The trial Court gave its decision in favour of the plaintiffs on the footing that the defendants had taken settlement of Sch. kha lands under the plaintiffs, and that they (the defendants) were under-raiyats, who had acquired rights of occupancy and were protected from eviction. The defendants were held liable by the trial Court, to pay rent to the plaintiffs in regard to Sch. kha lands or pay the same to the superior landlords, in the manner mentioned in the order portion of the judgment of the Munsif. On appeal by the plaintiffs and on cross-objection preferred by the defendants, the Court of appeal below, held that the plaintiffs were entitled to possession of their two-third share, and at the instance of the plaintiffs, passed a decree for joint possession to the extent of the plaintiffs' two-third share in respect of Sch. kha lands, the plaintiffs having represented to the Court they would be satisfied with a decree for joint possession.
3. In my judgment, both the Courts below proceeded on an erroneous basis, and their decision cannot be supported. The error on the part of the Courts below is due to the fact that they altogether failed to appreciate and give effect to the decision of the previous suit of 1925. There is no question that the plaintiffs asserted in the present suit that the denial of the under-raiyati by the defendants amounted to forfeiture of the tenancy held by them, and they were therefore entitled to get possession of the lands in respect of which there was an under-raiyati interest. It would appear however from the judgment in the previous suit of 1925, that the under-raiyati interest was held to be non-existent, for the reason that the story of an arrangement between the cosharers, the plaintiffs, and the defendants, set up by the plaintiffs had not been established. In that view of the case, the position is this: The plaintiffs are cosharers of the defendants in regard to Sch. kha lands, and there was no under-raiyati in respect of the two-third share owned by the plaintiffs. The Courts below failed to take into consideration, the questions that had to be decided, and were in point of fact decided in suit No. 457 of 1925, and by virtue of which decision, the plaintiffs could not be allowed to reagitate the question of an arrangement between themselves and the defendants by which an under-raiyati in respect of Sch. kha lands was brought into existence.
4. In support of this appeal reliance was placed on a decision of this Court in Ramgati Mohurer v. Pran Hari Seal (1906) 3 CLJ 201 and Nilmadhao Bose v. Ananta Ram Bagdi (1898) 2 CWN 755. In the first of these decisions, it was held that where the denial by a tenant of his landlord's title is followed by a decree of Court affirming such denial, that denial operated as a forfeiture, and the landlord was entitled to khas possession of the land by ejectment of the tenant. In that decision, regarding the soundness of which there can be no doubt, reliance was placed on the decision in Nilmadhao Bose v. Ananta Ram Bagdi (1898) 2 CWN 755, where the position was recognized that in giving effect to a claim for khas possession on the ground of forfeiture incurred by denial of landlord's title, it must be found that the land belonged to the landlord, by whom a tenancy was or could be brought into existence. As has been mentioned already, in the case before us, the case of the plaintiffs that there was an arrangement between co-sharers by virtue of which an under-raiyati held by the defendants under them, was altogether negatived in the previous suit of 1925, and that question could not be allowed to be re-opened, as between the plaintiffs and the defendants in the present litigation. The plaintiff's, by virtue of the previous judgment, were relegated to the position of cosharers of the defendants, and there was no relationship of landlord and tenant between them in any way whatsoever, so far as Sch. kha lands were concerned. The property in question therefore belonged to the plaintiffs and the defendants as cosharers, and the claim for possession of the same could not be allowed on the ground of forfeiture of tenancy, as asserted in this case. The effect of the previous judgment in the suit of 1925, was, as has been indicated already, to relegate the plaintiffs and the defendants to the position of cosharers in possession of joint property, according to their convenience. The remedy of the plaintiffs lay in having the property partitioned, and then getting possession of the share allotted to them, on partition. The decree for joint possession as made by the Court of appeal below, is wholly unsustainable, and is based upon a misconception of the rights of parties in the present case, which had to be determined on the basis of the previous judgment in suit No. 457 of 1925, which must be treated as a final decision by a competent Court, and according to which the plaintiffs could not be allowed to claim a higher right than that of cosharers, and could not have any reliefs other than those available in a suit for partition.
5. The result of the conclusions I have arrived at, as mentioned above, is that the decision and decrees passed by the Courts below are set aside, and the plaintiff's suit is dismissed. There is no order as to costs in this appeal. The parties are to bear their own costs throughout the litigation.