JUDGMENT
1. These are three connected Letters Patent appeals each brought by a defendant against decrees of a learned single Judge of this Court confirming the decrees of the lower appellate Court for the ejectment of the defendants. The three suits were brought by the plaintiffs as fixed-rate tenants. It was argued in the first place that the plaintiffs were not fixed-rate tenants. The plaintiffs were persons who were recorded in the 1911 settlement as fixed-rate tenants of land in pargana Kaswar Raja, district Benares. Under U.P. Act 4 of 1915, Section 4(4) there is a definition as follows:
A fixed-rate tenant means a tenant who has been recorded as a fixed-rate tenant in the Record-of-rights....
2. The rest of the definition does not concern the plaintiffs, as they have been recorded as fixed-rate tenants in the Re-cord-of-Rights. It was argued by the learned counsel for the appellant that this definition merely raised a legal presumption that the plaintiffs were fixed-rate tenants. We consider that the definition clearly shows that the plaintiffs are fixed-rate tenants and that there is no question of mere legal presumption It was of course open to the appellant to show that the fixed-rate tenancy had terminated in one of the ways by which fixed-rate tenancies are terminated under Act 2 of 1901 which has been applied to this pargana Kaswar Raja by Section 6, Act 6 of 1915. The appellant claims that the tenancy had terminated by dispossession by the landholder and that the period of dispossession had exceeded the six months within which a suit for dispossession must be brought under Section 79, Act 2 of 1901. The finding of fact by the lower appellate Court which is binding on this Court in second appeal was as follows:
In my opinion plaintiffs have failed to prove that the contending defendants (i.e., the appellants) hold as tenants of Jagdamba Prasad and the only fact which is proved is that these defendants have been in cultivatory possession of the land for periods varying between four and seven years.
3. It was further found by the lower appellate Court:
It must be held that Har Shankar, Badri Narain and Adit Narain respectively are each in separate possession of different fields.
4. It is to be noted that these three persona (who are the appellants) are co-sharers in this mahal and along with them there are two other co-sharers Jaisri Singh and Ballu Singh. It was claimed for the appellants that all these co-sharers were members of a joint Hindu family and that joint Hindu family through different representatives cultivated all these holdings. The finding of fact of the lower appellate Court is that this was not so, but that these three persons Har Shankar, Badri Narain and Aditya Narain were in separate cultivation of the different holdings. Accordingly following the ruling of Chedda v. Achha Singh A.I.R. 1924 All. 572, we hold that the possession not being by or on behalf of the whole body of co-sharers no suit for ejectment could bo brought by the tenants under the provisions of Section 79 of Act 2 of 1901. The sections under which the plaintiffs can sue to eject the appellants are Sections 34 and 58 as has been held in Balli v. Naubat Singh [1912] 9 A.L.J. 771 and Jagardeo Singh v. Ali Hammad [1918] 40 All. 300. Accordingly we consider that the decree of the learned single Judge of this Court was correct and we dismiss these appeals with costs.