1. This is an appeal on behalf of the plaintiff in a suit for ejectment, and, in the alternative, for assessment of rent under Section 157 of the Bengal Tenancy Act.
2. It appears that the first defendant alone is registered as tenant in respect of the disputed land in books of the landlord, though the second and the third defendants also are jointly interested in the tenancy. The plaintiff sued the first defendant for recovery of arrears of rent. That defendant denied the title of the plaintiff and the result was that the action for rent was dismissed. The plaintiff now sues to eject all the defendants on the ground that the tenancy has been forfeited by disclaimer. He also prays that if the tenancy has not been forfeited, fair and equitable rent may be assessed.
3. The Court of first instance declared the title of the plaintiff but dismissed the claim both for possession and assessment of rent. Upon appeal by the plaintiff, the Subordinate Judge has declared that the title of the first defendant as tenant has been forfeited; but he has held that the plaintiff is not entitled to a decree for possession as the second and third defendants are not liable to be ejected.
4. In the present appeal, it has been argued on behalf of the plaintiff that the tenancy has been forfeited and that he is entitled to eject all the three defendants. It has been contended in substance that as the first defendant was allowed by the co-sharers to represent them in the books of the landlord, the disclaimer by him operates as a forfeiture of the tenancy in respect of all the persons interested therein. In our opinion, this argument is obviously fallacious.
5. It may be conceded that as the first defendant represented the tenancy in the books of the landlord, he was entitled to bind his co-sharers for the purposes of the tenancy; but when he repudiated the tenancy, he must be taken to have acted beyond the scope of his authority. Consequently, his disclaimer cannot operate as a forfeiture of the tenancy in so far as the second and third defendants are concerned. It is further clear that there cannot be a forfeiture of the tenancy in part. The position, therefore, is that the tenancy still subsists and the suit for ejectment must fail. But there is no reason why the plaintiff should not realise rent from all the defendants on the footing that the tenancy still continues, '
6. The result is that the decree of the Subordinate Judge is discharged, and in lieu thereof it is declared that the claim for ejectment must be dismissed. The case is remanded to the Court of first instance in order that the plaint may be amended and the rent payable in respect of the tenancy determined. The defendants are entitled to their costs of this appeal as also of the appeal before the Subordinate Judge. The casts in the Court of first instance will abide the result.