Kuber Nath Singh and Another vs Gopal Narain Ram and Others

Mullick, J.—The plaintiffs instituted the present suit for recovery of rent and for ejectment after service of notice determining the tenancy. The suit, therefore, is a mixed suit, partly for rent and partly for ejectment on determination of tenancy. The plaintiffs said that their grandmother dedicated the house, which is the subject-matter of the suit, for the service of an idol, but did not create a trust. She merely created a charge upon the property to the extent of Rs. 8 per month and that the allegation of the defendants that Damodar, the Pujari of the idol, is their landlord is not well founded. The Court of first instance found that the relationship of landlord and tenant had not been established. On appeal the learned Subordinate Judge was of opinion that although the relationship of landlord and tenant may not have been established, it was competent to the plaintiffs to prove their title to the property as reversioners of Lakhmi Narain, the husband of the grandmother of the plaintiffs.

Now in the form in which the suit has been brought it is quite clear that the relationship of landlord and tenant must be established before the plaintiffs can succeed. So far as the suit is for rent, it is quite clear that this is so and indeed this is admitted; but it is contended by the learned Vakil for the respondents that this is also a title suit in so far as it is a suit for ejectment and in this view it is competent for the trial Court to go into the question of the rights of the reversioners to the property in question. The plaintiffs desire to show that the dedication was not a perfect dedication and that Damodar Das, although he may have realised the rent of the property for some years, is not now competent to realise the same against the will of the plaintiffs.

Now it is necessary to see what is the cause of action so far as ejectment is concerned. The cause of action is determination of tenancy. It is not a general cause of action based upon title against a trespasser, but it is a cause of action against a tenant and, therefore, unless and until the plaintiffs prove the relationship of landlord and tenant, the cause of action on which this suit has been brought cannot be maintained. Therefore, the decree of the Munsif is right and the decree of the learned Subordinate Judge remanding the case for trial on this issue is wrong and must be set aside. The appeal succeeds and the suit is dismissed with costs.

This judgment will govern Appeal from Appellate Order No. 186 of 1917 (Mathura Ram and others versus Gopal Narayan Ram and others).

Thornhill, J.

I agree.