1. The plaintiff's case shortly put was as follows: By a lease dated 4th Agrahaon 1320 (20th November 1913) the plaintiff settled a chur named Chur Udaipur, consisting of about 392 bighas of land, for a period of ten years with one Asiruddi Hazi and one Kazem Munshi, for purposes of cultivation. The jote was sold in execution of a decree for arrears of rent for the period 1324 to 1327 B.S., and purchased by one Syeduddin, son of Asiruddi Hazi on 24th October 1922. Syeduddin thus came into possession and continued to be so for the unexpired portion of the lease. The term of the lease expired in Kartic 1330, when Asiruddi gave up possession, so that the chur reverted to the khas possession of the plaintiff. The plaintiff then caused proclamation for settlement of the chur to be made by beat of drum and by affixing notices at various places, got the chur surveyed and chittas and khatians prepared and then settled it with the pro forma defendants, such settlements being made during the period Falgoon 1330 to Baisakh 1331. Defendant 1 Sefatulla Biswas (who had taken a lease of a half of the chur, i.e., of 196 bighas, from Asiruddi) at first tried to obtain a settlement, but having failed therein, created various disturbances and eventually dispossessed the proforma defendants. The plaintiff therefore instituted this suit on 9th March 1927 for recovery of khas possession or if it be found that the pro forma defendants had raiyati rights then for recovery of joint possession with them, and also for mesne profits.
2. Defendant 1 in the suit was the said Sefatulla Biswas as already stated. Defendants 2 to 37 are sub-lessees and other persons whom defendant 1 set up and who are alleged to have been acting in concert with him in the matter of the dispossession. Defendants 38 to 76 are the proforma defendants. The written statement of defendant 1, under whom the contesting defendants, namely, defendants 2 to 37 claim, is important. He pleaded that the suit could not proceed as the jotedars Asiruddi Hazi and the heirs of Kazem Munshi were not parties to it; and without determining whether they had given up the lands. He denied that Asiruddi or Kazem or the heirs of the latter or Syeduddin ever abandoned the holding, and asserted that consequently the plaintiff had no right to make a fresh settlement of the lands. He also denied the allegations as to the issue or service of the proclamations for settlement. A written statement was originally filed on behalf of defendants 2 to 37 in which only a barga right and no permanent right was set up. The suit proceeded and eventually there was a decree on a compromise as amongst the plaintiff, defendant 1 and some of the pro forma defendants, defendant 1 getting a quantity of land for himself, and ex parte against defendants 2 to 37. Subsequently the ex parte decree was set aside, and defendants 2 to 37 were allowed to file a fresh written statement, it being held that the first written statement filed on their behalf was not really theirs but was the handiwork of defendant 1 who had practised a fraud on them. They filed a fresh written statement pleading that the tenancy of Asiruddi and Kazem had not been determined, that they themselves had taken settlements from defendant l whose tenancy was subsisting and that, in any ease, they were tenants bona fide holding under the latter and so not liable to eviction. The Subordinate Judge has dismissed the suit. Hence this appeal by the plaintiff.
3. The main question, which the Subordinate Judge treated as a preliminary question in the case and on the decision of which he has dismissed the suit, is, as he put it in his judgment, a question as to non-joinder, namely, non-joinder of Asiruddi, of the heirs of Kazem and also of Syeduddin. In reality however it is not a mere question of non-joinder but a question of substance as well. He held that the plaintiff had failed to prove that these persons had no subsisting rights, that the question as to whether the lease in favour of Asiruddi and Kazem had determined or not or whether Syeduddin had a subsisting tenancy or not could not be decided in the absence of those persons, and he observed:
If they were made parties, they would be able to produce evidence, which the contesting defendants are not in a position to produce, that their lease had not been legally determined; so in their absence the plaintiff's right to settle lands to the pro forma defendants cannot be established. This non-joinder of necessary parties is fatal to the plaintiff's case. The plaintiff has not impleaded the parties whose right to remain in possession cannot be ignored,
4. In our judgment, there is considerable difficulty in regarding these persons as 'necessary' as distinguished from 'proper' parties, so as to make their nonjoinder fatal to the suit. They were certainly very proper parties, but having regard to the frame of the suit it cannot, in our opinion, be said that in their absence the suit was not maintainable. Any decision arrived at in their absence would not, of course, be binding on those persons, and it may even be that such a decision may be rendered infructuous by these persons because of the fact that they would not be bound thereby. But even then, if what the plaintiff alleged is proved, the plaintiff is entitled to have a decree, whatever its practical effect or consequence may be. The real question is a question of the merits, which as indicated above is closely intermingled with the question of non-joinder. To deal with the merits a few more facts require to be stated. The kabuliat executed by Asiruddi and Kazem was as already stated, for a term of 10 years to expire in Kartie 1330; but in it there was the following clause:
If on the expiration of the term we apply for obtaining settlement of the aforesaid land at a reasonable or proper rate of rent, you will grant a fresh settlement to us or to our heirs or legal representatives.
5. In Sefatulla's kabuliat in favour of Asiruddin, which as already stated was executed in 1919, it was recited that the jote which the latter was holding was a kayemi jote, but it was also stated:
Your term in respect of the land described in the schedule will expire in the month of Kartic 1330. I shall not be able to plead for abatement of rent for that reason. If you take a fresh settlement of the said property from the zamindar Hemanta Kumari you will not be entitled to eject me from the property described in the schedule.
6. The arguments addressed to us on behalf of the appellant are of a three fold description. In the first place it has been contended that Asiruddi and Kazem never appeared to take a settlement although it was publicly proclaimed that a fresh settlement was going to be made; indeed it was alleged in the evidence that there was positive refusal on their part to take a fresh lease. Secondly, it has been urged that there was, in fact, abandonment on the part of Asiruddin and Kazem and also on the part of Syeduddin, as was the case alleged in the plaint. And thirdly, it has been maintained that the plaintiff was entitled under the law to regard the tenancy as having come to an end. So far as the first of these contentions is concerned we are in entire agreement with the Judge below in the findings of fact that he has arrived at. We hold that the case put forward on the appellant's behalf that two officers of Asiruddin and one Abdul Sobhan on behalf of Kazem's heirs told them that they would not take a renewal is not proved. At the same time we are not inclined to accept as true the evidence that has been adduced on behalf of the defendants that negotiations were going on with those persons when the fresh settlements were made. We think the evidence on the whole justifies the finding that the plaintiff's officers took the position to be that Asiruddi and Kazem's heirs had no existing right and on that supposition proceeded to deal with the lands. As regards the second contention we are of opinion that also has not been made out. Nothing has been proved which can reasonably lead us to hold that there was abandonment either in fact or in law. It is true that rent was not being amicably paid, but that is hardly any indication that there was an intention to give up the property, when the amounts were being paid in one way or another and when the property was put up to sale, either the sale was set aside by payment of the decretal amount together with compensation or the property was purchased in the name of Sayeduddin, son of Asiruddin. There is evidence that the tenancy was a profitable one. On the other hand the attempt made by the plaintiff to prove that possession had, in fact, been given up by those persons has not succeeded. The sub-tenant Sefat and his under-tenants were on the land, and there is nothing to indicate that Asiruddi or Syeduddin, and Kazem's heirs were not in possession of the lands, through those persona as before.
7. The third contention is the only one that deserves a more careful consideration. The position taken up by the plaintiff is that, in any case, on the expiry of the lease and when there was no prayer for renewal she was justified in treating the tenancy at an end and in making fresh settlement of the lands with the pro forma defendants; ignoring such possession as Asiruddi or Syeduddin or Kazem's heirs or Sefat or the subordinate tenants or bargadars who may have been on the lands had. As observed by the Judicial Committee in the case of Watson & Co. v. Ram Chand Dutt (1891) 18 Cal 10:
in Bengal the Courts of Justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience.
8. In England where the original lease provides that the lessee must apply for a renewal within a specified time, the condition is not regarded as implying that time is to be regarded as the essence of the contract unless there is clear stipulation to that effect either express or implied: see Hearne v. Tenant (1807) 13 Ves 287. In Lewis v. Stephenson (1897) 67 LJQ B 296 it was said that where a lease is silent as to the time when application should be made, it has been said that it must be made with a reasonable time before its expiration. But it has been pointed out that this dictum was obiter: (see Foa on Landlord and Tenant, Edn. 6, p. 360 where it is also said, quoting Job v. Barrister (1856) 2 K & J 374, affirmed, in 26 Ch. 125, that it is not, as it is thought to be inferred, that the lessee will necessarily lose his right of renewal by not having made the application if he continues in possession afterwards with the sanction of the lessor). If one party is guilty of delay the other may call upon him to fulfil the agreement within a reasonable time and any further delay after notice will defeat a claim to specific performance whether made by the lessor or by the lessee unless capable of satisfactory explanation. In Foa on Landlord and Tenant, Edn. 6, p. 429 it is said:
Hence though an agreement to let for a specified term, with a stipulation to grant a lease at the tenant's request for a further specified term at the same rent, may be specifically enforced at the instance of the lessee unless he has waived his right (Mc Ilary v. Clements) (1923) WN 81, affirmed C.A. p. 140) at any time after expiration of his first term (Moss v. Burton) (1866) 1 EQ 474, so long as he has continued in possession with the sanction of the lessor (Buckand v. Papillon) (1866) 2 Ch 67, or (as it has been otherwise expressed) as long as the relation of landlord and tenant continues (Rider v. Ford (1923) 1 Ch 541 Mc Ilray v. Clements) (1923) WN 81 the lessor may call upon him to decide if he will take the lease, and any delay on the part of the lessee after receiving such notice will be fatal, [Hersey v. Gibbett (1854) 18 Beav 174: per Lord Romilly M.R.].
9. Now the circumstances under which a holding over may be presumed may not have been present in this case; but there was no waiver of the clause, and the original tenants were in possession by themselves and through sub-tenants. If the lessee continues in possession, when there was a renewal clause in the original lease, by himself or his under-tenants, after the original term without exercising his option, he is liable for rent in an action for use and occupation: (Christy v. Tancred (1840) 7 M & W 127; Waring v. King (1841) 8 M & W 571. In the case of Mc Ilroy v. Clements (1923) WN 81 in the judgment of the Court of appeal no grounds are given, and it would seem that the original relationship was supposed to continue because the lessee continued in possession. When the original lease contains a renewal clause with no term fixed, and the lessee continues in possession after the expiry of the original term the mere fact that the original term has expired in the absence of any circumstance suggesting a waiver or refusal, ought not in our opinion, to be regarded as determining the relationship between the parties. Moreover a contrary assumption would militate against the spirit if not the letter of Section 89. Ben. Ten. Act.
10. We are of opinion that the plaintiff, before she made the fresh settlements was bound to give notice to the original lessees. Proclamation may have been issued inviting people to take fresh settlements, but we are not satisfied that the original lessees had any notice or knowledge, from which a refusal or waiver on their part could be inferred. We think the Court below was right in the view it took of the merits of the case. We accordingly dismiss the appeal, with costs to the appearing respondents, other than respondent 1.