JUDGMENT
1. This appeal has arisen out of a suit brought by the plaintiff appellant for ejectment of defendant No. 2 and, in the alternative, for ejectment of all the defendants six in number. The first Court decreed the suit for ejectment of the second defendant; but the lower Appellate Court has dismissed it in toto. Hence this second appeal.
2. The suit was one under Section 58 of the Agra Tenancy Act, brought under very peculiar circumstances. The plaintiff appellant, the Maharaja of Dumraon, leased 107 bighas odd to Madan Mohan Singh, Bhau Nath Singh and Rarn Khelawn Singh, the first three defendants, for a term of seven years 1316 to 1322 Fasli, at a certain rent. The term reserved by the lease expired in 1322 Fasli, but the lessees held over till 1327 Fasli, when a fresh transaction of which the nature and validity is in question in this case, was entered into. It appears that, the original lessees and three other persons, who are defendants Nos. 4, 5 and 6, negotiated with the plaintiff appellant for a lease conferring rights of occupancy not in the technical sense but rights of a more permanent character than those enjoyed by non occupancy tenants, on payment of a large sum as nazrana. For some reason, which is not clear from the redord and is not material, the second defendant Bahw Nath did not join the other defendants in the transaction, and a lease, dated 11th November 1918, was executed in favour of defendant No. 1 and defendants Nos. 3 to 6 concerring occupancy rights of the nature already described, Bhao Nath On the one hand did not vacate the land and on the other did not object to the introduction of three new tenants into the holding. In course of the Settlement operations which followed in 1329 Fasli, a question arose as to whether defendant No. 2 should be recognized as a tenant or his rights had terminated with the execution of the lease already referred to. Eventually, the Commissioner decided, on 9th March 1925, that defendant No. 2, who was, before the execution of the lease, a non-occupancy tenant, continued to be such, that he was in joint cultivating possession with the lessees and that he should be recorded as a non-occupancy tenant with them, The suit which has given rise to the present appeal was instituted on the 30th September 1925 (before the passing of Act III of 1926) for ejectment of defendant No 2 only, and in the alternative for ejectment of all the defendant on the 'nazrana' paid by them befog refunded by the plaintiff-appellant.
3. The lower Appellate Court has refused to eject any of the defendants. The learned District Judge was of opinion that two separate tenancies cannot co-exist and therefore, defendant No. 2, who must be considered to be one of several tenants having a common holding, cannot be ejected. He also held that none of the defendants can be ejected, because the lease conferring occupancy rights on defendants other than defendant No. 2 bars ejectment. He also expressed the opinion that the dispute being really one between co-tenants, the plaintiff land-holder has no right to eue for ejectment. We may say at once that this view does not commend itself to us. If defendant No. 2 is liable to ejectment and if he is a non-occupancy tenant, the plaintiff land-holder is entitled to eject him and is the only person who can eject him. So long as his non-occupancy rights subsist, his co-tenants cannot successfully institute a suit for ejectment either in the Civil or Eevenue Court.
4. We have heard the learned Counsel for defendant No. 2, at considerable length and are of opinion that the appeal must succeed. The existence of two tenancies in respect of the same holding on different terms is a matter, of rare occurrence; but there is nothing in law which makes it impossible that one of several tenants should be liable to ejectment whereas the other may not be so liable. It is conceivable that a number of tenants may have a right to cultivate a certain holding jointly, but their obligations to the landlord may vary. The learned Advocate for the respondents has not referred us to any rule of law which precludes the possibility of such a state of thing. His contention is based on the definitions of 'tenant' and 'holding'. He argues that all the defendants collectively should be considered to be 'tenant' with reference to this holding. Any of them individually is not. According to the definition of that term given in Section (5), tenant is a person by whom rent is or, but for a contract express or implied, would be liable to pay rent. All the requirements of this definition are made out in case of defendant No. 2, who as a non-occupancy tenant, as he claims to be, is liable to pay rent to the plaintiff-appellant. Indeed, the defendant insists on being allowed to stay on as tenant and be made liable to pay rent. Holding is defined in Section 4(9) as meaning a parcel or parcels of land held under one tenure or one lease or engagement. There is no doubt that defendant No. 2 is holding over after the expiry of the tenancy created by the first lease for 1316 to 1322 Fasli, whereas the other defendants are holding under a different engagement, namely, that embodied in the lease dated 11th November 1918. It may be that the land to which the engagement in case of each refers is one and the same, but in law each of them must be considered to possess a different tenure.
5. Section 58 of the Tenancy Act II of 1901 entitles a land-holder to eject a non-occupancy tenant. Given the existence of the ground on which the law entitles the landholder to eject a non-occupancy tenant, he has an unqualified right to eject his non-occupancy tenant. There appears to be no legal bar to one of several tenants holding under different engagements being ejected, while the others, who are entitled under their engagements, to continue as tenants; being left in the occupation of the land. One of the arguments addressed to us was that a new tenancy could not have been created by the plaintiff-appellant over the head of defendant No. 2 : whose rights subsist. The logical result of the arguments is that the subsequent engagement, in this cafe the lease dated 11th November 1918, was inoperative. We do not accept the' correctness of this argument in the circumstances of this case but assuming that the aforesaid lease is inoperative, all the defendants aie ron'cccupancy tenants. And this is the contention of defendant No. 2. In that view, the plaintiff appellant is entitled to the second relief, viz;, ejectment of all the defendants, as none of them acquired any right uncer the lease dated 11th November 1918, which was ex-hypothies abortive. In such a case, there is nothing to prevent the plaintiff appellant from obtaining ejectment of all the defendants in a formal manner but simultaneously re affirming the tenancy in favour of defendants Nos. 1 and 3 to 6 in terms oft the lease. The argument, therefore, that one of several tenants in the position of the defendants cannot be ejected in law is demonstrably untenable.
6. It was strenuously contended before us' that the Commissioner's decision, to which we have already referred, is conclusive as regards the status of defendants Nos. 1 and 3 to 6, who, according to the learned Advocate for the appellant, were declared by the Commissioner to be non-occupancy tenants. Reliance is placed on Sections 42, 54 and 57 of the Land Revenue Act in support of this argument. On a reference to the Commissioner's order, it is clear to us that there was no dispute between the plaintiff-appellant on the one hand and defendants Nos. 1 and 3 to 6 on the other. Consequently, any expression of opinion as regards their status cannot be conclusive. As we read that order, the only question which the Commissioner was called upon to decide and did decide was whether defendant No. 2 was a co-tenant and was entitled to have his rights recorded in the revenue papers then in course of preparation. We hold, therefore, that that order does not, in any way, affect the rights of defendants Nos. 1 and 3 to 6.
7. For the foregoing reasons, we are of opinion, that this appeal must be allowed. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance is restored. The plaintiff-appellant shall have his costs from defendant No. 2. The costs will include Counsel's fees in this Court on the higher scale.