Hill and Stevens, JJ.
1. The appellants before us were the plaintiffs Nos. 1 to 3 in the Court of first instance and are proprietors to the extent of eight annas odd gundas in a parcel of land comprising 141 bighas, which is in the possession of the persons, who have been referred to as the principal defendants in the suit. With the appellants certain other persons joined as plaintiffs, who represented a two annas interest in the same property, and the remaining interest is vested in the pro forma defendants. The suit was for what has been described as partial ejectment of the principal defendants, that is to say, the plaintiffs asked for khas possession to the extant of their share in the, land jointly with the principal defendants, and there was an alternative prayer that, if the Court should think fit, the principal defendan's might be declared liable to pay to the plaintiffs a fair and equitable rent to be determined by the Court.
2. The plaintiff's case was that the tenant-defendants held the lands in suit in lieu of certain services to be performed by them as famishes; and that as they no longer performed or were disposed to perform these services, they had consequently served upon them a notice calling upon them to quit and give up possession of the land, but they failed to do so; and hence the suit.
3. In the Court of first instance, the plaintiffs obtained a decree, but on appeal, that decree was reversed by the learned Judge and the suit was dismissed.
4. Here it is contended that the learned Judge was wrong in dismissing the suit: and the points pressed upon us for the appellants were that the learned Judge should have given them a decree for partial ejectment or that, if they were not entitled to that relief, he should have fixed a fair and equitable rent, to be paid to them by the principal defendants for the occupation of the land. It was further contended that if any notice to quit was necessary as a preliminary to the action, the case ought to be remanded for the purpose of having it determined, whether such a notice had not in fact been served upon the principal defendants, since, although the point had been raised in the pleadings, no decision had been arrived at on it by the Court below.
5. The judgment of the learned Judge is not very dear, I confess, to my mind, as to the actual nature of the relation subsisting between the principal parties, to the suit; but the Subordinate Judge has given a history of the tenant-defendants' tenure, which has, I think, only to a very slight extent been dissented from by the learned Judge, the difference between them being that, while the Subordinate Judge arrived at the conclusion that in its inception the tenure was held at a pecuniary rent and was afterwards by consent of parties converted into a service tenure, the learned Judge his found that it was from the beginning a service tenure and has so continued down to the present time. Whether, as the plaintiffs assert, there had been any discontinuance on the part of the tenant-defendants of the service for the rendering of which they had been permitted to hold possession of the land, there has been no finding. But we must take it, in the absence of a finding to the contrary, that the tenure being of the nature found by the Lower Appellate Court, the principal defendants were and are willing, if indeed the point be really material, to render the services, in consideration of which they have held the land, if they be called upon to do so. But the learned Subordinate Judge has indicated an explanation of the present attitude of the plaintiffs towards thorn, pointing out that on the death of one of the co-sharers in the zemindari, the estate passed into the hands of the Court of Wards and that the Court of Wards being of opinion that the services rendered were not a fair equivalent for the value of the land held, endeavored to get something of a higher value from the tenants, and that its attempt has led to the present difficulty.
6. Reverting to the questions, which, as I have stated, wore raised before us, the learned vakil for the appellants founded his contention that his clients were entitled to a partial ejectment upon three cases, which he cited to us. The first was the old case of Hulodhur Sen v. Gooroo Doss Roy (1873) 20 W.R. 126. Then he referred to the case of Radha Proshad Wasti v. Esuf (1882) I.L.R. 7 Calc. 414 and lastly to the case of Kamal Kumari Chowdhurani v. Kiran Chandra Roy (1898) 2 C.W.N. 229. These cases, however, all of them, are cases in which an individual co-sharer has let a person into the possession of the land as tenant without the consent of the co-sharer seeking to eject that person from the land and we think upon that ground they are distinguishable from the present case, because, as we understand the judgments of the Courts below with respect to the position of the parties, the defendants were originally let into possession of the land as tenants by all the co-sharers in the zemindari; and it appears to us that, in order to justify any individual co-sharer in seeking now to eject them, it must be shown that the tenancy so created by all the co-sharers has been determined by all of them, and the law will not permit a single co-sharer to take separate and independent action, such as has been taken by the plaintiffs in this case, for the purpose of determining even so far as his own share is concerned a tenure or tenancy, which has been created by the common consent of all the co sharers. The law is clearly so laid down in the case of Radha Proshad Wasti v. Esuf (1898) 2 C.W.N. 229, to which I have already referred, at page 417 of the report. It seems to us, therefore, that there being no evidence of the determination of this chakran tenure by the common consent of the co-sharers, who now represent the original creators of the tenure, and the tenancy being therefore still a subsisting tenancy. It is not competent to the plaintiffs to maintain a suit for ejectment of the respondents.
7. In this view, it is unnecessary that we should consider in detail the other points raised on behalf of the appellants, for the judgment of the Lower Court may be maintained upon the principle to which I have just referred. But we may add, I think, that this case, not being governed by the provisions of the Bengal Tenancy Act, but being referable to what I may call for the sake of convenience the common law of the country, it is difficult to perceive upon what footing it would be competent to the 'Court to grant the relief secondly claimed by the plaintiffs, namely, the fixing as between them and the tenant-defendants, a fair and equitable rent, which would be in effect to create a new contract of tenancy between them. However, it is sufficient, for the purpose of this appeal, to any that on the ground we have already mentioned, we think that the judgment of the Court below should be maintained: and we accordingly dismiss the appeal with costs.