1. This is an appeal by the Defendant No. 1 against a decision of the Subordinate Judge of Mymensingh modifying a decision of the Munsif of the Second Court of Netrokona.
2. The suit out of which this appeal arises was brought by the plaintiff against 41 defendants for khas possession of certain disputed land by demolition of the huts alleged to have been wrongfully erected on the land by these defendants. Forty of the defendants did not appear in the suit and it was only contested by the present appellant, Defendant No. 1. The Munsif decreed the plaintiff's suit as to two-thirds of the land in dispute but as to one-third of the land he found that it formed part of a chak of Defendant No. 1, and accordingly, he passed a decree in favour of the plaintiff for joint possession with the defendants of two-thirds of the land in suit. Defendant No. 1 preferred an appeal against the decision of the learned Munsif. In this appeal, the only respondent was the plaintiff and the other 40 defendants were not brought on the record in the appeal. The plaintiff filed a cross-objection against that portion of the Munsif's judgment which failed to give him possession of one-third of the disputed land. The other 40 defendants were not made parties to the cross-objection. In the result, the lower appellate Court upheld the Munsif's decision with regard to the two-thirds and altered his decision with regard to the one-third holding that it was not part of the defendant's chak and the whole suit was decreed in full in favour of the plaintiff.
3. Various matters have been urged before us by the appellant in this appeal. First of all, ft is said that the decision of the Munsif dismissing the plaintiff's claim as to one-third of the land could not have been reversed in appeal on the plaintiff's cross-objection as the other 40 defendants were not parties thereto. Secondly, it was urged that no decree could have been passed in respect of one-third share if there had been an independent appeal by the plaintiff against the Munsif's decision on this point as in such an appeal the plaintiff must have brought on the record the 40 defendants who did not appear in the suit. Thirdly, it is said upon certain facts which I shall presently state that the suit is not maintainable by the plaintiff as his tenancy in the land has expired and lastly the decision of the lower appellate Court with regard to the one-third share in the land in dispute is attacked on its merits, it being said that the Munsif's decision was right, namely that this one-third formed part of the chak of Defendant No. 1 and it is said that the lower appellate Court has wrongly held that this one-third did not form part of the chak of Defendant No. 1 and that the learned Judge has arrived at his decision by an error which he has made in thinking that the whole of this chak fell within Mouzah Khalia Kanda whereas it is asserted that the chak was situate not only in Mouzah Khalia Kanda but in other adjoining mouzahs.
4. In our opinion, it is not necessary to consider the first two and last points which are raised in appeal for, we think that the appeal must succeed on the third ground to which I have referred and it is now necessary in connexion therewith to state certain facts.
5. The plaintiff's title arose under a lease dated the 15th March 1917 whereby he obtained from some Lahiris a lease for 3 years expiring on the 14th January 1920 of 1 anna 2 gandas share which fell to the Lahiris as their interest in the zamindari. The lessor of the plaintiff was also an ijaaradar whose interest extended to the remaining 12 annas gandas share in the zamindari. The ijara, we are told, expired on, the 17th September 1920, and as I have already stated the 3 years' lease which the plaintiff had claimed in the land in suit expired on the 14th January 1920. On the 18th September 1919, the plaintiff, it is alleged, was dispossessed by the defendants and this suit was brought on the 15th April 1920. From these dates it appears, that at the time the plaintiff's suit was commenced his tenancy had expired and, moreover, the ijara expired, as I have already stated, on the 17th September 1919 one day before the plaintiff's alleged dispossession. The plaintiff, however, alleges that, notwithstanding the fact, that his lease expired on the 14th January 1920 he is entitled to bring and maintain the suit on the ground that he was recognized as tenant by the landlords of the land in dispute and it is suggested that though the lease has expired the plaintiff may be treated as holding over with regard to land with the assent of the zamindars and that he has paid rent to them in respect of land.
6. This argument seems to me entirely wrong; the essence of a title of this kind is that the tenant holding over after the expiry of the term must be both in possession of the land and paying rent to the landlord for the land in order that any such tenancy may be created or may exist. We have no such thing here, as I have already stated, dispossession took place on the 18th September 1919 during the continuance of the lease. So even if the argument as to the possession and of the holding over of the land be correct, which I think it is not, it would not apply here as at the time the suit was brought the lease had expired and the plaintiff was out of possession. In the circumstances, in our opinion, the plaintiff cannot maintain the suit and the suit should have been dismissed on this ground. As I have already stated, in this view, it is not necessary to deal with the other contentions that have been raised by the appellant in the case.
7. In the result the appeal succeeds and the appellant will be entitled to his costs in all Courts. This judgment will govern the other four analogous cases.
B.B. Ghose, J.
8. I agree.