1. The plaintiff, now appellant, brought the suit, from which this appeal arises, to eject the defendants from a holding on the ground that the holding is an occupancy raiyati, which cannot be transferred without the consent of the landlord, and that the defendants by their purchase from the landlord's registered Tenant had acquired no title.
2. The defendants replied that the holding was one at a fixed rate of rent and that they had with the consent of. the landlord's naib divided the holding into three equal parts, each of which bore a third of the former rent of the whole. They also asserted that the suit was brought by a dishonest naib and without the knowledge of the landlord.
3. The first Court found that the holding was an ordinary occupancy holding, that is, a holding which cannot be transferred without the consent of the landlord, and the defendants do not appear to have challenged this finding in the lower Appellate Court.
4. Both Courts found that the suit had been instituted without the knowledge of the landlord, and that finding is one of the points pressed on appeal. It appears to me that the onus of proof has been placed on the wrong shoulders; the plaintiff is a lady and the defendants ought to have proved affirmatively that the plaintiff was ignorant of the suit; it was not enough for them to point to a few facts which give cause to suspect that it was the naib who instituted the suit and then to call upon the plaintiff to prove that she did authorize the institution of the suit.
5. The substantial question, however, is whether the plaintiff has a right to eject the defendants. The suit as framed was clearly based on the ground that the defendants had bought the holding from the registered tenant without the landlord's consent. The plaintiff's advisers, however, al-lowed themselves to be led away from the main issue by the defendant's pleading, and the question which was discussed in the Courts below, and the question which forms the subject-matter of the grounds of appeal to this Court, is whether there had been a subdivision of the tenancy sanctioned by the landlord. It seems obvious to me that in allowing the seventh issue to be framed as it was, and in not asking for an issue upon the question whether the transfer required the landlord's sanction or had received the landlord's sanction, there was an implied admission that the defendants had become the plaintiff's tenants of the holding, provided it was kept entire. Be that as it may, however, the grounds of appeal do not raise the point that the transfer had not been recognised, so we cannot go into that question.
6. Then, if we assume that the subdivision has not been authorized, I do not see how the plaintiff can obtain a decree for ejectment. It is suggested that we should direct that if the defendants do not 'jointly and severally attorn to the plaintiff' within a time to be fixed by the Court, they shall be ejected from the holding. But I cannot find in Section 88 of the Tenancy Act any warrant for such a decree. Whatever view we take of the finding on the matter of the subdivision of the tenancy there cannot be an order for ejectment, and as that is the only form of relief mentioned in the plaint, we cannot pass a decree directing that the subdivision is not binding on the landlord.
7. The plaintiff's appeal is dismissed with costs.
8. I agree.