1. S.A. No. 1307 of 1912. This is an appeal by the plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof. The property originally belonged to one Raghu Nath Mandal, and after his death passed by successive devolution to the representatives of three of his sons. The plaintiff is entitled to a three-eighths share as the representative of one of these sons. The eighth defendant as representative of another son is entitled to another three-eighths share. The remaining one-fourth share is vested in defendants Nos. 1 to 5 and 7 who represent the branch of the third son. The sixth defendant is a tenant in actual occupation who was brought on the land by the predecessors of the plaintiff and the eighth defendant. The Courts below have found that the sixth defendant was sued for rent by the plaintiff, and in answer pleaded that there was no relationship of landlord and tenant between them. This plea prevailed, and the Court dismissed the suit, as the plaintiff, failed to prove that the sixth defendant was his tenant. The plaintiff now contends that he is entitled to eject the sixth defendant. The Courts below have refused to give him a decree for ejectment on the ground that the tenancy of the sixth defendant under the plaintiff and his co-sharers, the first five defendants, has been established. This view cannot possibly be supported.
2. It has been argued on behalf of the sixth defendant that under the provisions of the Bengal Tenancy Act, there could be no forfeiture of a tenancy by a disclaimer of title of the landlord, as ruled in Debiruddi v. Abdur Rahim (1.) 17 C. 196. and Dhora Kairi v. Ram Jewan Kairi 20 C. 101.. This position need not be disputed for the purposes of the case before us. The real question in controversy is whether in view of what happened in the suit for rent, it is open to the sixth defendant to urge in this suit, in answer to the claim for ejectment, that he is the tenant of the plaintiff. In our opinion, this defence is not available to him. Parties litigant cannot be allowed to take up inconsistent positions in Court. The sixth defendant in the suit for rent pleaded successfully that he was not a tenant of the plaintiff nor of the eighth defendant. The plea was accepted by the Court, with the result that the suit for rent was dismissed to the detriment of the plaintiff. The sixth defendant cannot obviously be now permitted to take up an inconsistent plea and to urge that he is a tenant who should have been made liable for rent in the previous litigation contrary to his false defence. The view we take is supported by the decisions in Ekabar Sheikh v. Hara Bewah 8 Ind. Cas. 660 : 13 C.L.J. 1 : 15 C.W.N. 335., Sheikh Miadhar v. Rajani Kanta Roy 5 Ind. Cas. 708 : 14 C.W.N. 339 :, Nilmadhab Bose v. Ananta Ram Bagdi 2 C.W.N. 755., Fayj Dhali v. Aftabhuddin Sirdar 6 C.W.N. 575., Mallika Dasi v. Makham Lal 2 C.L.J. 389 : 9 C.W.N. 928., Ramgati Mohurer v. Pran Hari Seal 3 C.L.J. 201. If, then, the plea of tenancy is not available to the sixth defendant, what is his position? He must be deemad a trespasser in occupation of the land and he is liable to be ejected at the instance of the plaintiff.
3. The only question for consideration is the extent of the share in respect of which the plaintiff is entitled to succeed. The Courts below have found that the plaintiff in his own right is entitled to a three-eighths share. It has also been proved that by an arrangement between him and the representative of another son, the eighth defendant, he has got title to another three-eighths share of the property. This eighth defendant not only did not resist the claim of the plaintiff but when examined, as a witness supported it and admitted that by an arrangement with these two branches, which had lasted for many years and was apparently more or less of a permanent character, the plaintiff had become entitled to a three-fourths share. Consequently the plaintiff is entitled to joint possession of a three-fourth share of the land in occupation of the sixth defendant.
4. The result is that this appeal is allowed and the decree of the Subordinate Judge modified in the manner following, namely, the plaintiff's share to three-fourths of the land in suit is declared. He is further declared entitled to possession of the three-fourths share by ejectment of the sixth defendant to that extent. The order for costs made by both the Courts below is set aside and the plaintiff will have three-fourths of his costs in the lower Courts. He will also have his costs in this Court. The cross-objection filed by the respondent his not been pressed and is dismissed.
5. It is conceded that this judgment will govern the other Appeal No. 1677 of 1912 in which a similar order will be drawn up.