1. This appeal arises but of a suit for ejectment of the defendant, who is the appellant before us, after service of notice to quit.
2. It appears that in 1901, the plaintiffs' father brought a suit for ejectment against the appellant Pitambar and his brother Digambar from the disputed land and obtained a decree for khas possesion upon, a solenama. In 1904, Pitambar and his brother Digambar instituted a suit against the plaintiffs for specific performance of the contract, alleging that at the time of the solenama there was an agreement between the parties that the plaintiffs would grant a lease of the lands to them. The suit was decreed and the plaintiffs in the present case were given two months' time to execute a registered, lease and make it over to the defendants and it was directed that in default thereof, the lands would be measured on the defendants' application for the purpose and that a patta on the terms mentioned in the judgment would be prepared and executed by the Court on the defendants depositing the necessary stamp and costs of registration. In execution of the decree, the land was measured and the rent also was fixed but the lease was not executed. It is stated that a patta was drawn up in favour of Pitambar alone but it was not registered. The defendant or his brother did not take any further steps in the matter and the execution case was Struck off.
3. The plaintiffs served a notice under Section 49 of the Bengal Tenancy Act upon Pitambar alone and then brought this suit for ejectment.
4. The defence inter alia was that there was a tenancy in favour of both Pitambar and Digambar, that the notice to quit having been served upon Pitambar alone was not sufficient in law to determine the tenancy and that the plaintiffs' suit must, therefore, fail.
5. The Court of first instance dismissed the suit. On appeal that decree was reversed and the defendant has appealed to this Court.
6. Now, Pitambar was the only tenant recognised by the plaintiffs. Although no patta has been executed in his favour nor any rent received from him, he was treated as a tenant in the notice to quit that was served upon him. The notice to quit (if he was the sole tenant) was a good one and was properly served. That being so, and the interest of Pitambar being only that of an under-raiyat, the plaintiffs are entitled to a decree for ejectment.
7. The ground, however, upon which the right of the plaintiffs to eject is contested by the defendant is that there was a tenancy created not only in favour of Pitambar but also in favour of his brother Digambar, and that that tenancy could not be said to have been determined by a notice to quit served on Pitambar alone.
8. The plaintiffs alleged that, after the decree for specific performance had been passed, Digambar left the village and was residing in a different place and that in fact he abandoned the land.
9. The Court of first instance was of opinion that there was no abandonment.
10. The learned Subordinate Judge on appeal found: 'Digambar went to live elsewhere and consequently the plaintiffs' predecessor could only execute a patta in favour of the defendant. But the execution case having been dismissed in the meantime, the patta was not delivered to the defendant.'
11. The learned Subordinate Judge has not clearly found that there was an abandonment by Digambar, and it is accordingly contended on behalf of the appellant that the fact that there was an agreement coupled with the fact that Pitambar and Digambar were in possession shows that there was a tenancy created and that, on the principle of the case of Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858. 31 W.R. 109, the plaintiffs are precluded from saying that both the brothers were tenants. The principle is that, if there is an agreement to grant a lease and the intended lessee takes possession thereunder, though the requisite legal document has not been executed and registered, the parties are in the same position as if the document has been executed provided specific performance can be obtained between the parties to the agreement. The principle has been followed in a large number of cases in this country which are noticed in the case of Syam Kishore De v. Umesh Chandra 55 Ind. Cas. 154 : 31 C.L.J. 75 at p. 77 : 24 C.W.N. 463.
12. In the present case, there is no doubt that there was an agreement to grant a lease and that the defendants were in Possession from before the agreement. It is contended that the fact that they were allowed to continue in possession was sufficient to show that there was part performance, and there were some decided cases in which the principle was applied where the lessee was in possession from before the agreement.
13. It is ported out in Redman's 'Law of Landlord and Tenant', Seventh Edition, p. 211 that, ordinarily, when the tenant is in possession at the date of the parol agreement, merely continuing in possession does not of itself amount to part performance. But where the possession commences before the agreement but continues after the agreement has been entered into but with unequivocal reference to the agreement such possession might be considered as part performance.
14. In the two cases viz., Muhammad Shafikul Huq v. Krishna Gobinda Dutta 47 Cas. 428. 23 C.W.N. 284 : 28 C.L.J. 77 and Syam Kishore De v. Umesh Chandra 55 Ind. Cas. 154 : 31 C.L.J. 75 at p. 77 : 24 C.W.N. 463 the party who relied upon the doctrine of part performance was allowed to continue in possession; and after he had been for several years in possession, the other party brought a suit for possession on the ground that there was no deed of transfer. Although at the time when the suit was brought, any suit for specific performance by the party in possession would have been barred, the learned Judges held that, having lulled the party into security or partial security, who might otherwise have at any time claimed specific performance of the agreement, the opposite party should not be allowed to raise the question of limitation. In some cases also, the question of limitation was got over on the ground that in cases where no definite period for specific performance of the contract had been fixed, the period of limitation would run from the date when the performance was refused and that, therefore, in such cases the suit would be in time even if instituted after a long period, so long as the defendants were in possession. We think, however, that these principles cannot apply to the facts of the present case.
15. Here, a suit for specific performance was instituted. It was decreed and in execution some of the matters were settled. The principle upon which the case of Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858. 31 W.R. 109, and the cases which followed it, were decided, is that the party in possession could have got specific performance of the contract if he had sued upon the agreement. As stated above, an exception was made in cases where no definite period was fixed for performance of the agreement, or where the party had been lulled into security. But in the present case a suit for specific performance of the contract had already been brought and a decree obtained. The matter, therefore, did not thenceforth rest with the parties nor could any question of equities arise from the acts or conduct of the parties, after the decree. The matter came into the hands of the Court and if the plaintiff did not take proper steps for executing the decree, he cannot rely upon the principle of the cases cited above. The execution of the decree was barred by limitation at the date of the present suit. That being so, it cannot be held that there was a tenancy created in favour of both Pitambar and Digambar. And if there was a tenancy in favour of Pitambar alone, such tenancy was determined by the notice to quit. In these circumstances, the appeal must be dismissed with costs.