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Judgment
Vithayathil, J.—Defendant 2 is the Appellant. The appeal is from an order of remand. The plaint property and Anr. item which belonged to Kodungalloor Devaswom were leased by the Devaswon to one Thoma and his mother under Ex. III dated 10-7-1088. The lease-hold right has now devolved on Defendants 1 to 4. The Plaintiff obtained a superior lease, Ex. A, from the Devaswom on 28-7-1121 in respect of the plaint property. The Plaintiff instituted the suit for recovery of possession of the plaint property on payment of the value of improvements due to the Defendants in respect of that property.
Defendants 1 to 4 contested the Suit One of their contentions was that the suit for eviction of a portion of the lease-hold property was not maintainable in law.
The trial Court upheld this contention and dismissed the suit. In appeal filed by the Plaintiff the lower appellate Court held that the suit was maintainable and remanded the case to the trail court for disposal on the in sits. The civil (sic) neous appeal is from this order of remand.
The question whether a suit for eviction of a portion of the lease-hold property is maintainable was considered by a Full Bench of five Judges of the Madras High Court in - ''Kannyan Baduvan v. Alikutty'' 42 Mad 603 : AIR 1920 Mad 838 (A). In that case, four of the Judge held that the lessor is not entitled to eject a tenant from a part only of the holding but that
the assignee of the reversion in part of the demised premises is entitled to eject a tenant for one cause from such part on payment of the value of improvements to that part.
Seshagiri Ayyar J., held that neither the lessor nor the assignee of a part of the promises can (sic) tenant from a part of the premises during the continuance of the tenancy. This decision was considered by the Cochin High Court in - ''Nanu Pattar v. Ambi 17 ker 79 (B). It was held in that case that so far as Malabar is concerned, in the absence of prejudice to the tenant the landlord is entitled to recover a part of the holding paying the value of improvements on that part.
Varghese C.J., did not agree with the view taken in the Madras case that the lessor is not entitled to eject a tenant from part only of a holding. This decision was followed in - ''Ramankutty v. Subramonia Mudaliar 18 ker 449 (C).
Learned Counsel for the Appellant relled on two decisions of the Calonttn High Court reported in - ''Ram Kanie v. Gunesh Chunder 33 Cal LJ 513 (D) and -''Bhimram v. Hura Soondery 33 Cal 513 (E). In these cases it was hold that a suit for ejectment of a tenant from a portion of the holding is not maintainable. The suit in this case is not by one lessor but by the holder of a superior lease in respect of a portion of the holding. Therefore, both according to the view taken by the Madras High Court and by the Cochin High Court the suit is maintainable.
I am unable to agree with the view take by the Calcutta High Court in the case referred in above. I however, think that it is necessary that the lessor also is made a party to the suit that the decision relating to the apportionment of rent may be binding on the lessor also. Subject to this direction. I confirm the order of the lower appellate Court and dismiss the civil miscellaneous appeal with costs.