The main legal point established in the judgment is that the execution of the decree was barred by limitation, and therefore, there was no tenancy created in favor of both the defendant and his brother.

JUDGMENT

1. This appeal arises out of a suit for ejectment of the defendant who is the appellant before us after service of notice to quit.

2. It appears that in 1901, the plaintiff's' father brought a suit for ejectment against the appellant Pitambar and his brother Digambar from the disputed land and obtained a decree for Khas possession upon a solenama. In 1904, Pitambar and his brother Digambar instituted a suit against the plaintiffs for specific performances of the contract, alleging that at the time of the solenama there was an agreement between the parties that the plaintiff would grant a lease of the lands to them. The suit was decreed and the plaintiffs in the present case were given two months' time to execute a registered lease and make it over to the defendants and it was directed that in default thereof, the lands would be measured on the defendant's application for the purpose, and that a patta on the terms mentioned in the judgment would be prepared and executed by the Court on the defendant's depositing the necessary stamp and costs of registration. In execution of the decree, the land was measured and the rent also was fixed, but the lease was not executed. It is stated that a patta was drawn up in favour of Pitambar alone, but it was not registered The defendant or his brother did not take any further steps in the matter and the execution case was struck off.

3. The plaintiffs served a notice u/s 49 of the Bengal Tenancy Act upon Pitambar alone and then brought this suit for ejectment.

4. The defence inter alia was that there was a tenancy in favour of both Pitambar and Digambar, that the notice to quit having been served upon Pitambar alone was not sufficient in law to determine the tenancy and that the plaintiffs' suit must therefore fail.

5. The Court of first instance dismissed the suit. On appeal that decree was reversed and the defendant has appealed to this Court.

6. Now, Pitambar was the only tenant recognised by the plaintiffs. Although no patta has been executed in his favour nor any rent received from him, he was treated as a tenant in the notice to quit that was served upon him. The notice to quit if he was the sole tenant was a good one and was properly served. That being only that of an under-raiyat, the plaintiffs are entitled to a decree for ejectment.

7. The ground, however, upon which the right of the plaintiffs to eject is contested by the defendant is that there was a tenancy created not only in favour of Pitambar but also in favour of his brother Digambar, and that that tenancy could not be said to have been determined by a notice to quit served on Pitambar alone.

8. The plaintiffs alleged that after the decree for specific performance had been passed, Digambar left the village and was residing in a different place and that in fact he abandoned the land.

9. The Court of first instance was of opinion that there was no abandonment.

10. The learned Subordinate Judge on appeal found "Digambar went to live elsewhere and consequently the plaintiffs' predecessor could only execute a patta in favour of the defendant. But the execution case having been dismissed in the meantime, the patta was not delivered to the defendant."

11.The learned Subordinate Judge has not clearly found that there was an abandonment by Digambar, and it is accordingly contended on behalf of the appellant that the fact that there was an agreement coupled with the fact that Pitambar and Digambar were in possession shows that there was a tenancy created and that on the principle of the case of Walsh v. Lonsdale (1882) 21 Ch. D. 9, the plaintiffs are precluded from saying that both the brothers were not tenants. The principle is that if there is an agreement to grant a lease and the intended lessee takes possession thereunder though the requisite legal document has not; been executed and registered, the parties are in the same position as if the document has been executed provided specific performance can be obtained between the parties