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Second Appeal No. 48 of 1952, decided on 4th February 1957.

Transfer of Property Act (IV of 1882) S. 106‑Principle of representation cannot be invoked where heirs of original tenant have same interest in tenancy.

The principle of representation, as provided in the Bengal Tenancy Act, cannot be invoked in a case where the heirs of the original tenant, according to the ordinary law of succession, will have the same interest in the tenancy and where some of those heirs are left out in a suit for ejectment in' terms of section 106 or other provisions of the Transfer of Property Act.

Where an ejectment decree was directed only against one of the heirs of the original tenant and not against his co‑sharers.

that such decree was not at all an effective decree for ejectment terminating the lease hold interest as enjoyed by the heirs of the original tenant.

A trespasser cannot avail of relief of injunction as against a person having some legal title.

In a competition between the plaintiff who is none but a trespasser having no manner of title and the defendant who has got some basis of title, the trespasser should not be allowed to avail of the principles of equity by way of injunction as against a person who has got some legal title to the suit land. Relief of injunction is based on principles of equity and a Court of Law or Equity can hardly favour a person who is a trespasser against the person who has got some legal title.

M. H. Khondkar for Appellant.

A. S. M. Mofakher for Respondents.

This appeal arises out of a suit for injunction. The plaintiff's case in short is as follows : One Badu Fakir had a mokarari jote in respect of the suit land. Under him, Samiran Nessa had a raiyati right in it. She left a son Rahim Bux and a daughter Amiran Bibi who again left a daughter Tahuron Bibi and a brother Rahim and they were in possession.

2. In the meantime, Badu Fakir having died, one of his heirs converted his interests into a wakf estate. Muhammad Kader Ali, as receiver appointed by Court in respect of the wakf property along with his co‑sharers Muhammad Lokman Hakim and others brought a suit, ,being Title Suit No. 105 of 1939, against Rahim Bux for injunction and got a decree which was confirmed in appeal. Thereafter the plaintiff took pattan of 3 annas 5 19/66 pies interest in the suit land from Lokman Hakim in 1347 B. S, and the plaintiff has been possessing the suit land in ejmali with the heirs of Rahim Bux by erecting huts and dwellings therein. The plaintiff's further case is that the defendant by means of Title Suit No. 211 of 1946, since converted into Partition' Suit 'No. 204 of 1948, got a decree and obtained symbolical possession and on the basis of the decree the defendants were trying to demolish the huts on the suit land and threatened the title of the plaintiff: The plaintiff' has accordingly been obliged to bring the suit.

3. The defendant contested .the suit contending inter alia that before the so‑called ejectment decree was obtained in Title Suit No. 105 of 1939, one Osman Ali got a money decree and, in execution of the same in Money Execution Case No. 204 of 1936, purchased the suit land and the huts that stood thereon and, so far the right, title and interest of Rahim Bux and his son Kismatullah were concerned, they were acquired by him. It is also contended that Osman Ali in due course took possession of the suit land through Court and thereafter sometime in 1944 sold it to the defendant by a registered kabala dated the 21st July 1944: The sale took place on the 27th November 1936, and was confirmed on the 2nd January 1937, and the possession in pursuance of the sale was taken by Osman Ali through Court on the 19th May 1937. It is contended on behalf of the defence that the ejectment decree in Title Suit No. 105 of 1939, having been obtained only against Rahim Bux and not against his co sharer Amiran Bibi or her daughter Tahuron Bibi and no possession having been taken through Court on the basis of such ejectment decree, was void and infructuous, and that the so‑called settlement taken from certain fractional landlords was of no effect and the plaintiff was not entitled in law to get any remedy in the present suit.

4. The trial Court came to the finding that the ejectment decree was void and infructuous and although it observed that the allegation of pattan itself as set up by the plaintiff was false, yet no conclusive finding was arrived at on this question because it took the view that the pattan in 1347 was avowedly made in pursuance of the decree in Title Suit No. 105 of 1939, and the same being void and infructuous, the pattan could not have any legal stand‑point. In the result, the suit was dismissed with costs by the trial Court.

5. On appeal, the learned Subordinate Judge took the same view as the learned Munsif did and the appeal was also dismissed.

6. In this Second Appeal, the learned Advocate for the plaintiff‑appellant contends that the ejectment decree in question having been directed against Rahim Bux who alone figured as the holder of the tenancy according to the relevant settlement khatian, it could not be said that such decree was void or in any way infructuous. He contends further that the principle of representation or that of relationship of landlord and tenant as ordinarily understood will apply to the facts of the present case although the holding in question was within the municipal area of the town of Bogra and governed 6y the Transfer of Property Act. He does not, however, categorically say that the principles as applied under section 146‑A of the Bengal Tenancy Act can be invoked .in the facts and circumstances of the present case. I do not see as to how it can be said that the co‑sharers, if any, of Rahim Bux could not be said to be necessary parties for the purpose of the ejectment suit. From the averment made in the plaint, it is clear that the original tenant was amiran Nessa and not Rahim Bux alone. It is not the case of the plaintiff that Rahim Bux took an independent and fresh settlement from the landlords and the inception of the tenancy in question stood originally in the name of Rahim Bux and not of Samiran Nessa. In that view of the matter, if, Samiran Nessa was the original tenant, whatever right, title.and interest she had in the present suit must have devolved upon the heirs of Samiran Nessa and not upon Rahim Bux alone. The principle off representation, as provided in the special Act, namely, the Bengal Tenancy Act, cannot be invoked in a case where the heirs of the original tenant, according to the ordinary law of succession, will have the same interest in the tenancy and where some of those heirs are left out in a suit for ejectment in terms of section 106 or other provisions of the Transfer of Property Act. It is said that the ejectment suit was instituted on 'the ground of termina tion of the relevant lease. If that is so, all the heirs of Samiran Nessa could in law be regarded as necessary parties in order to get an effective decree terminating the lease itself. I cannot, therefore, agree with the learned Advocate for the plaintiff appellant that the ejectment decree which was directed only against Rahim Bux and not against his co‑sharers would at all be regarded as an effective decree for ejectment terminating the leasehold interest as, enjoyed by the heirs of Samiran Nessa. Ini fact, no possession was taken through Court in pursuance of the said decree for ejectment. The learned Munsif has also found that there was no evidence to show that any possession on the basis of the decree for ejectment was taken through Court. It is curious to find that the heirs of Rahim Bux were said to be still on the suit land although it is suggested that possession might have been taken by the landlords in pursuance of the ejectment decree in Title Suit No. 105 of 1939. To me it seems, although there might have been a decree for ejectment, no possession on the basis of the same was taken, nor the heirs of Rahim Bux or others who might be on the suit land were at all disturbed. It is not disputed that Osman Ali in execution of his money decree auction‑purchased the holding in question as early as 1936, that is, before any decree for ejectment could be passed in Title Suit No. 105 of 1939. It is not also disputed that Osman Ali took possession through Court on the basis of his auction‑purchase also before the said ejectment decree. In the eye of law, Rahim Bux having no interest, any decree for ejectment against Rahim Bux alone in 1939 could have created no right in favour of the decree‑holders concerned and, in view of the fact that no possession was taken on the basis of such ejectment decree, everything seems to have been paper transaction and the right of the persons on the land as tenants under the heirs of Badu Fakir continued as before in spite of such ejectment decree. The defendant has, of course; for the purpose of his title did not rely upon the title of Tahuron Bibi but relies upon the title of interest acquired by Osman Ali in execution of the money decree. The defendant claimed two‑‑thirds interest in the property in his Partition Suit and got a decree accordingly. He also got saham to that extent. The title of Rahim Bux. fractional or otherwise, having been acquired by Osman Ali long before the ejectment decree of 1939 and Osman Ali, not being made a party to that an ejectment decree in suit, continued as a co‑sharer tenant along with others in respect of the holding in question. The defendant also claims to have taken possession on the basis of his decree in the Partition Suit. It is thus clear that the defendant has at least some manner of title in the suit land. The plaintiff‑appellant then claims no title through Rahim Bux himself although he claims to be a relation of his. He bases his claim on an independent settlement taken from the landlords. No document of such settlement creating tenancy, as set up by the plaintiff, has come into being. What ever may be the foundation of his so‑called settlement; if the landlords themselves had no right to settle in the way as alleged by the plaintiff by reason of the fact that they were not in a position to claim any right under the ejectment decree obtained in Title Suit No. 105 of 1939, then the story of pattan as set up by the plaintiff can have no foundation or basis whatsoever. So far possession is concerned, he links up his claim with the heirs of Rahim Bux who are his relations. It is not his case that he had got independent exclusive possession so far the suit land is concerned. The heirs of Rahim Bux being parties to the Partition Suit are bound by the decree passed therein. Even if, therefore, the plaintiff has ever been in possession of the suit land in combination with his relations, yet, in view of the fact that he cannot claim any title on the theory of settlement as set up in the plaint, he cannot but be regarded as a trespasser, pure and simple. In a competition between the plaintiff who is none but a trespasser having no manner of title and the defendant who has got some basis of title, I do not think a trespasser should be allowed to avail of the principles of equity by way of injunction as against a person who has got some legal title to the suit land. Relief of injunction is based on principles of equity and a Court of Law or Equity can hardly favour a person who is a trespasser against the person who has got legal title. In this view of the matter, I do not find any reason to interfere with the findings of the Courts below. No other contention has been pressed before me. In the result, the appeal fails and is dismis sed with costs.

Z. A. S.

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