SARJOO PROSAD, C. J. :

This appeal is by the plaintiff who filed a suit for ejectment of defendant No. 1 from 13 lessas of land. He also claimed compensation in the suit.

(2) The facts show that one Golap Chandra Dowerah died leaving behind an area of 36 bighas 2 kathas and 5 lessas in a ward of the Dibrugarh Municipality. Defendants 2 to 7 are the sons of Golap Dowerah and defendants 8 and 9 are his two widows.

There was an amicable partition between the heirs, according to which the plaintiff got 4 bighas 1 katha of land as his share, and his mother, defen­dant No 8, got another four bighas of land for herself.

The plaintiff, at the time of the amicable arran­gement, was a minor and a separate periodic patta No. 192/254 was issued in the joint names of the plaintiff and his mother in respect of their shares of the land comprising 8 bighas and 1 katha.

The patta covers dags 879/932 and 880/933. The latter dag has an area of 3 kathas and 5 lessas and Includes the disputed area of 13 lessas in respect of which the present suit has been filed. The plaintiff instituted a suit earlier, being Title Suit No. 25 of 1952, for eviction of the defendant from this land, but the suit was dismissed for want of necessary parties. He then brought the present action, to which this appeal relates, after serving a fresh notice to quit on the defendant, and asking him to vacate after 31-10-52. As the defendant refused to comply, the plaintiff filed the suit.

(3) In this suit, as I have already observed, his other brothers and his step-mother are all par­ties. His case is that the defendant is a trespasser in respect of this 13 lessas of land which, on par­tition between the heirs of Golap Dowerah, has fallen to his share and, therefore, he is entitled to evict the defendants. The case of the defendant No. 1, on the contrary, is that he is in occupation of a compact area of H kathas of land on which his houses are standing, and that he is a tenant under the plaintiff and the other co-sharers on pay­ment of a sum of Rs. 12/- per annum. The defen­dant No. 1, therefore, contended that 'he could not be evicted from this area of land, and that the suit in its present form was not maintainable. He further pleaded that there was no legal and valid notice to quit served upon him.

(4) The learned Munsiff who tried the suit, found in favour of the plaintiff and decreed the claim. He was of the view that defendant No. 1, if at all, was merely a tenant by sufferance and so the question of splitting up the tenancy or of ser­vice of any valid notice to quit did not arise.

The defendant No. 1 appealed against the decree and succeeded there. It was held that the plaintiff was not entitled to maintain a suit for ejectment in respect of the 13 lessas of land only by splitting up the tenancy of the defendant. The Court also held that there was some defect of par­ties inasmuch as one Musst. Susila Dowerah, who appeared to be the owner of 19 lessas of land out of the 1 katha 12 lessas in occupation of the defen­dant No. 1, had not been impleaded as a party.

On the question of tenancy and notice to quit, the learned Subordinate Judge held that the defen­dant No. 1 was not a trespasser but a tenant and, as such, he could not be ejected without a valid notice to quit. But he found that the notice, which was served, in respect of ejectment from the 13 lessas of land, could not be said to be bad, and that the notice had been served upon the said defendant. He accordingly dismissed the suit.

(5) Mr. Gupta, in support of the appeal, urges that the learned Subordinate Judge was in error in holding that Musst. Susila Dowerah should have been made a party to the suit. This contention in our- opinion, is well-founded. There was no case in the written statement that Susila Dowerah was a necessary party to the suit or that she had any interest in the land in question.

Dinesh Chandra Dowerah, the husband of Susila Dowerah, has been examined on behalf of the plaintiff, and he stated that the

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