1. This appeal is preferred by the defendant, and it relates to a small strip of land measuring about ten kattas. The plaintiff's case is that she and defendant No. 3 are owners of an estate No. 165 of the Hooghly Collectorate, immediately to the east of some railway 'B' class land, and that the land in suit lies within their estate and not in the 'B' class land, that the land was in possession of their tenants, defendants Nos. 4 to 10, but the first and second defendants have entered on the land, and cut trees, dug a tank and built a privy and established a bazar. On those allegations she claimed khas possession.
2. The suit was resisted by the second defendant, who asserted that the land was really situated in the 'B' class land of which he is the owner. The first Court found that the land was in the plaintiff's estate and gave her a decree for possession through the tenants along with her co-partner, the defendant No. 3.
3. The second defendant appealed and the plaintiff preferred a cross-appeal, and the learned Judge dismissed the cross-appeal, and modified the decree of the First Court by allowing the plaintiff possession through tenants of only that portion which lay immediately to the east of the holdings of the tenants Mohes and Hari Das within the estate: in regard to the remainder he gave the plaintiff nothing more than a declaration of her title.
4. The finding that the land lies within the estate belonging to the plaintiff and defendant No. 3 is final, and the, appeal has been argued before us on that footing. The question which is raised is whether the plaintiff as landlord is entitled to demand khas possession of the whole area.
5. The land in suit must be treated as forming part of those holdings of the plaintiff's tenants, to which it is contiguous. Those holdings are still in existence, and the tenancies have not been determined. The respondent contends that until those tenancies are determined, the plaintiff as landlord has no right to sue at all, and he has preferred a cross-objection urging us to deny to the plaintiff even the partial relief that has been granted to her.
6. For the present I leave out of consideration the parcels of land adjoining the holdings of Hari Das and Mohes. So far as the rest is concerned I think that there is abundant authority for the proposition that the plaintiff cannot claim khas possession. Decisions like those of Bissesuri Dabeea v. Baroda Kanta Roy Chowdhry 10 C. 1076 : 9 Ind. Jur. 226 : 5 Ind. Dec. (N.S.) 719 and Raj Kumar Mandal v. Ali Mia 70 Ind. Cas. 792 : 37 C.L.J. 94; (1923) A.I.R. (C.) 192 do not help her when they are examined. On the other hand there is the case of Davis v. Kazee Abdul Hamed 8 W.R. 55 followed by many others, and never, so far as I can find, doubted. One decision of particular value is the Full Bench decision of the Allahabad Court in the case of Sita Ram v. Ram Lal 18 A. 440; A.W.N. (1896) 162 : 8 Ind. Dec. (N. s.) 999 in which the vigorous if erroneous exposition by the one dissentient Judge drew from Edge, C.J., a very clear statement of the law. On the authorities I think that plaintiff cannot get more than she has got. On the same authorities I think that she is entitled to the decree which has been made and the cross-objection must be dismissed.
7. Then regarding the parcels adjoining Mohesh and Hari Das holding the finding is that those plots have been in possession of the tenants within twelve years of the suit, that fact may justify the slight difference which has been made in the relief granted to the plaintiff; practically I think this difference will amount to nothing, for the decree does not direct that either the plaintiff or the tenants will be put in physical possession. There is, therefore, no need to allow the defendant's cross-objection in regard to these two portions any more than in regard to the remainder.
8. The result is that the appeal and the cross-objection must both be dismissed with costs.
9. Plaintiff instituted the suit out of which this appeal arises for declaration of title and recovery of possession in respect of a strip of land which is claimed by her as appertaining to her Touzi No. 165 and which the principal defendants viz., Nos. 1 and 2 claim as appertaining to their Railway 'B' class land. The piece of land is made up of portions of holdings of certain tenants of the plaintiff five in number. As the result of two local investigations held by a Commissioner the boundary was ascertained and a map showing the encroachment was prepared. The learned Munsif made a decree declaring the plaintiff's title to the portion found by the Commissioner to have been encroached upon by the defendant No. 2 and awarding the plaintiff possession thereof through the tenants by receipt of rent. The defendant No. 2 preferred an appeal from the said decision. The plaintiff too preferred a cross-appeal, but the same need not be further considered. On the appeal of the defendant No. 2, the learned Subordinate Judge made a variation in the decree, upholding it so far as it declared the plaintiff's title but limiting it, so far as possession is concerned, to the portion of the holdings of two out of the five tenants which had been found to have been encroached upon by the said defendant. The plaintiff thereupon has preferred the present appeal.
10. Upon the case as laid by the plaintiff herself, the tenancies of the different tenants have not been determined and they are still in possession of portions of their holdings. The plaintiff, therefore, has no cause of action for a suit for khas possession and so far as that relief is concerned the suit must be held to be premature. This principle was enunciated in the cases of Davis v. Kazee Abdul Hamed 8 W.R. 55, Hedayetunnessa Begum v. Shibdayal Singh 8 W.R. 512 and Womesh Chunder Goopta v. Raj Narain Roy 10 W.R. 15 and has been followed ever since in all the Courts in this country. The principle has been very clearly explained in the Full Bench decision of the Allahabad High Court in the case of Sita Ram v. Ram Lal (i) in which Sir John Edge, C.J., observed as follows: 'The principle, it appears to me, must be the same all the world over, and certainly must be the same in India as in England. That principle is that where a man, whether the owner or merely a tenant, creates a tenancy under him which entitles the tenant to the exclusive use of the land or of the house, as it may be, the man creating the tenancy cannot have any right to actual possession, unless he has by the lease or by agreement with his tenant reserved to himself a right to re-enter and take possession.' In that judgment the learned Chief Justice has also pointed out the circumstances under which a landlord whose title has been questioned by any one else than the tenant may institute a declaratory suit, and if any one enters on the receipt of the rents and profits of the land and takes from his tenants the same which were due to him he may also be entitled to a decree putting him into possession, that is, what is known as formal possession as contradistinguished from actual or khas possession. In the same case Bannerji, J., observed that if actual possession was taken during the currency of the lease by a trespasser, such a person would be a trespasser as against the tenants, and not as against the landlord so as to justify the latter in claiming ejectment of the trespasser; if his title is denied he may certainly defend that title by a suit for a declaration of his right; but so long as he does not himself possess the right to enjoy physical possession he cannot eject the trespasser. In the present suit, the tenants never relinquished possession before suit; they filed statements after the institution of the suit, to the effect that they had no objection to the plaintiff getting a decree. This, in my opinion, did not improve matters in any way; and the learned Subordinate Judge in my judgment was right in refusing the plaintiff a decree for khas possession. The learned Subordinate, Judge has upheld the decree declaring the plaintiff's title, and this, in my opinion, was the utmost that the plaintiff could get in the present suit. He has, however, given the plaintiff a decree for possession through two of the tenants in respect of the portions of their holdings encroached upon by the defendant No. 2. I am very doubtful if he was justified in making a differentiation in respect of these two holdings from the others, having regard to the fact that the present suit is a simple action for possession based on trespass, alleged to have been committed during the subsistence of the tenancies. It must be remembered that this is not a claim based on an allegation that the trespass is injurious to revision. Even though the trespass is accompanied by a claim of right, it is not necessarily injurious to the reversion [Ram Chandra Sil v. Ramanmani Dasi 36 Ind. Cas. 890 : 20 Order W.N. 773.] Nor has it been alleged that the plaintiff's right to receive rents from these two tenants has been affected in any way or that her rents and profits have been intercepted by the contesting defendant in a manner justifying such a decree. See the case of Raj Kumar Mandal v. Ali Mia 70 Ind. Cas. 792 : 37 C.L.J. 94; (1923) A.I.R. (C.) 192 where all the authorities on the point have been discussed. As, however, the learned Subordinate Judge has found that the plaintiff has succeeded in proving that she has received the rents of these two portions within twelve years before suit, and the effect of the decree will be that he will be in possession through her said tenants and not in khas possession, I do not think that it matters much.
11. I, therefore, think that the judgment of the learned Subordinate Judge is substantially correct and I agree that the appeal and the cross-objection should both be dismissed with costs.