Arthur Page, J.

1. The only question in this case is in respect of costs. Itarises in this way. The plaintiffs were in possession of the premises inquestion as sub-tenants of the defendants. The defendants obtained a decree inejectment against the plaintiffs landlords, and that decree having beenobtained, by section 115 of the Transfer of Property Act, all rights ofsub-lessees who held under the defendants were at an end, for the simple reasonthat a landlord cannot give to a tenant or to a subtenant something which hedoes not possess himself. If his rights are gone, those, who claim under andthrough him lose their rights also. The effect of that decree was that thepresent defendants, who were the head landlords of the plaintiffs, wereentitled to possession of there premises as against the plaintiffs and againstthe plaintiffs landlords, and the plaintiffs have not, and have neversuggested that they had, a shadow of right to remain in possession after thedecree had been passed against their immediate landlords. What they say isthis, that, although it is perfectly true that they had no legal ground forresisting the execution of that decree, yet, as they had not been made partiesto the action, they were not bound by the decree. Or, in other words, unless alandlord chooses to make all the sub-lessees and every body who may haveacquired an interest through those under-tenants, parties to the action, he canonly execute his decree against those persons against whom decrees have beenobtained, with the result that he may have to bring any number of suitsultimately against other persons who remained in possession. If that were so,it would, I think, tend unduly to multiply the number of suits. I quite agreethat it is convenient that actions for possession based on forfeiture should bebrought against all the parties interested in the premises. It is a convenientpractice, but I apprehend that Mr. Justice Rankin, who in the case cited to meby counsel for the plaintiffs, was dealing with a different matter, namely, anapplication in respect of resistance to delivery of possession under Order 21,did not intend to decide-and in my opinion, having regard to section 115 of theTransfer of Property Act it would not have been possible for his Lordship tohave decided-that the effect of not making every tenant and sub-tenant a partywas to limit the right which the landlord would have on obtaining his decree,to obtain possession of the premises by executing the decree.

2. Therefore the question arises in this way. Were theplaintiffs in this action justified in bringing a suit for which they had nolegal ground whatever, a suit to restrain the present defendants their headlandlords, from obtaining possession of these premises. In my opinion there wasno justification at all for taking any such proceedings. I do not pretend, andit is no part of my duty* in this particular case, to consider the effect ofOrder 21, rules 99 and 101, and I do not propose to express any opinion aboutthe meaning of those sections. But for the purpose of deciding the question asto whether the plaintiffs were justified in bringing this action, and inclaiming now, when they have given up possession, that they are entitled to say"we do not propose to go on with the action, but we were perfectlyjustified in bringing it, and are entitled to our costs," in my view it issufficient for me to hold that they are taking up a wrong position, that theynever had any justification for bringing this action, that they never had anyjustification for resisting the execution of the decree, and, in my opinion,the costs of this action should be borne not by the defendants but by theplaintiffs. The suit will be dismissed with costs on scale No. 2. Interest oncosts at 6 per cent.

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Ramkissendas and Ors. vs. Binjraj Chowdhury and Ors.(10.01.1923 - CALHC)