Jwala Prasad, J.

1. These two appeals arise out of a decision of the Judicial Commissioner of Manbhum, dated the 22nd May 1918, disagreeing with that of the Deputy Collector, dated the 27th September 1917, and dismissing two suits of the plaintiff (Nos. 951 and 949) for rent in respect of two villages Dimu and Rigid respectively. The suits were tried together and were disposed of by one judgment of the Deputy Collector and also by one judgment of the Judicial Commissioner. They have been heard together by us and it will be sufficient to give one judgment with regard to both of them. The facts are similar.

2. The plaintiff is the landlord of the villages. He instituted two suits against the defendants and their co-sharers for ejectment from the villages on the ground that they were only ijaradars in the said villages. These suits were numbered 29 and 30 of 1913. They were contested by all the defendants and ultimately terminated in a compromise decree. The present defendants were only parties to that compromise and the co-sharers who are not before us did not join in that compromise and the plaintiff withdrew his claim against them.

3. By the terms of the compromise embodied in the decree of the Court, the present defendants were declared to be permanent ijaradars of the entire villages and entitled to hold possession thereof on payment of enhanced rents.

4. The co-sharers of the present defendants thereafter instituted Suits Nos. 101 and 111 of 1914 in the Court of the Subordinate Judge of Parulia for a declaration of their permanent mukarrari right in both the villages, alleging that they were not bound by the said rafanama entered into between the present plaintiff and the present defendants in Suits Nos. 29 and 30 of 1913 and that on the strength of the said rafanama the present defendants interfered with their possession. They also sought a declaration that the rents before the said solenama were permanent and that they were not liable to pay the enhanced jamas agreed to by the present defendants.

5. These suits were decreed and it was declared that the plaintiffs in those suits and the present defendants were co-sharers in the mukarrari interest in the villages and that the rents were fixed and permanent and that they were not liable to pay the enhanced rentals agreed to by the present defendants.

6. The plaintiff in the present suits commenced an action for recovery of rent entered into in the com promise against the present defendants. Their co-sharers were not made parties. The defendants pleaded that the compromise was obtained by the plaintiff on account of collusion and fraud and that they were not bound by the same and that they were not liable to pay the enhanced rents entered therein. These suits were dismissed by the trial Court, whose decision was upheld by the Judicial Commissioner of Manbhum.

7. The plaintiff then came in second appeal to this Court. It was conceded in the course of arguments on behalf of the plaintiff that the decisions of the Courts below dismissing the suit could not be disturbed, that the only course open to him was to apply for withdrawing the suit with liberty to bring a fresh action.

8. One of the suggestions made for this prayer before the learned Judges, who heard the said appeal, was that the defendants having been in possession of part of the property comprised within the mukarrari grant, the plaintiff should have been given a decree for rent at least in respect of the lands in possession of the present defendants. Mr. Justice Atkinson, who decided that appeal, observed that there were various matters placed before him for consideration which were neither raised nor discussed in the Courts below and, therefore, in the interest of justice it was necessary to allow the plaintiff to withdraw the case and to institute a fresh action, for raising proper issues and placing all the matters before the Court for proper adjudication in the case. These two suits out of which these appeals have arisen were, therefore, instituted afresh.

9. Comparing, however, the plaints in these two suits with those of the previous ones, there appears to be no additional fast or circumstance stated in the present plaints, nor has any additional fact been brought out in the evidence on the record. The evidence on the record consists entirely of the decisions of the previous litigation between the parties and the co-sharers already adverted to and of one witness on behalf of the plaintiff and another on behalf of the defendants in each of the two cases. We have gone through the judgments of the Deputy Collector and the Judicial Commissioner in the previous cases. We do not find any fact now placed before us in this case which was not considered in those previous cases.

10. The only contention raised before us is that the defendants are bound by the terms of the compromise, inasmuch as the Courts below have rejected their contention that it was obtained by fraud or compulsion. No doubt, the defendants are bound by the terms of the said compromise decrees. These terms, as already stated, were that they would be in possession of the property as mukarraridars thereof and would pay a rental of Rs. 125. It was, however, finally decided in the previous litigation inter partes between the plaintiff, the defendants and their co-sharers that the defendants were never in possession of the entire properties as mukarraridars thereof and that their co-sharers were all along in possession of their interest in the same. The plaintiff's suit in which the compromise decrees were obtained was for ejectment, treating the defendants as trespassers on the land. The defendants, thinking that the plaintiff was entitled to confer a mukarrari right to the entire properties, entered into an agreement covenanting to pay the enhanced rents mentioned in the rafanama but if the plaintiff's right to confer the entire mukarrari interest upon the present defendants was illusory, the whole contract of lease embodied in the said compromise decree was the result of the mistaken notion of the rights of the plaintiff. The plaintiff in fact was not and could never have been able to give possession to the defendants which as a lessor he was bound to do. It is a well recognised principle that governs the relationship between landlords and tenants that the delivery of possession by the lessor is a condition necessary for the maintenance of an action for rent. It is not necessary that there should have been an actual eviction or an interference on the part of the landlord, as has been contended for by Mr. Mullick. In the present case the defendants never got into possession of the entire 16 annas of the properties as mortgagors. Therefore, no question of eviction can arise. In the case brought by the co-sharers of the defendants, it was held that the present defendants attempted to obtain possession of the entire village on the strength of the compromise but they did not succeed and their attempt was held to be unjustifiable. The rights of the co-sharers were declared in the mukarrari which they had previously held. The plaintiff lessor has not shown that he was able to give possession of the property but that the lessee defendants did not avail of that and willfully neglected to take possession. In the present case it has already been shown that the property was already in possession of 3rd parties, the co-sharers of the defendants, and it was impossible for the plaintiff to give possession to the present defendants, and until he was able to give possession of the properties be is not entitled to rent for the same, in lieu of the use and occupation of the land by the lessee. The principle was laid down in the case of Hurish Chunder Koondoo v. Mohinee Mohun Mitter 9 W.R. 582, which has since been affirmed in later decisions and is the law up to the present day, vide Bullan v. Lalit Jha 3 B.L.R. (App.) 119, Narainsawmy Naidu Garu v. Yerramali Ram Krishnaya  5 Ind Cas. (sic) : 7 M.L.T. 119 : (1910) M.W.N. 22 and 280 : 33 M. 499. The principle has been recognised by the positive enactment in section 108 of the Transfer of Property Act. That principle applies to all kinds of leases, agricultural and non agricultural. The plaintiff is, therefore, not entitled to rent for the entire properties as covenanted for in the compromise decrees. The decision in the case of Burhunuddi Howladar v. Mohun Chunder Guha 8 C.L.R. 511 relied on by Mr. Mullick does not apply to the facts of the present case. There one of the holders of an under-tenure had purported to agree for himself and on behalf of the co-sharers to pay the enhanced rent fixed and this arrangement was acquiesced in by all the so sharers. In the present case far from acquiescence in the arrangement made by the present defendants, the co-sharers expressly contended and succeeded in obtaining a declaration that they were not bound by the paid arrangement. The contention of Mr. Mallick must, therefore, fail and the claim of the plaintiff for rent of the mukurrari tenure of the villages must be dismissed, and the Courts below were right in dismissing it.

11. It has then been contended that the plaintiff is entitled to proportionate rent, at least at the rate embodied in the compromise decree with respect to the share held by the present defendants as mukarraridars in the village, and reliance is placed upon the case of Ram Taran Chatterjee v. Asmatullah Sheikh  6 C.W.N. 111. In that case, one of several joint tenants executed a kabuliyat in favour of the landlord for the entire tenure, and in a suit brought by the other tenants it was proved that the other tenants had not acquiesced in the arrangement stated in the kabuliyat, and accordingly it was held that they were not bound by the terms thereof. Subsequently upon an action brought by the tenant, who had executed the kabuliyat, for a declaration that he was bound only to pay rent proportionate to his share in the land, and not to pay the entire rental for the entire quantity of land, it was held that he was liable only to 4 annas share in the interest which he held in the holding. The facts of that case appear to agree in many respects with the facts of the present case and the principle governing that case will probably apply to the present case. But the plaintiff is not entitled to apportion the rent among the several joint tenants thereof, inasmuch as he has not brought all the co-sharer tenants on the record and in their absence apportionment of the rent cannot take place. In the second place, neither in this nor in the previous litigation anywhere has the shard of the present defendants been stated. There has been no prayer also in the plaint claiming proportionate share of the rent from the defendants.

12. Mr. Mullick then prays that the case may be sent back for further investigation into these matters and for their determination. That would be changing the character of the whole suit, and we are afraid it is not permissible under the law. We cannot, therefore, accede to the request of Mr. Mullick.

13. The result is that the appeal is dismissed with costs throughout.

L.C. Adami, J.

I agree.