Brojo Lal Roy and others Vs R. Belchambers and others

Bodilly, J.@mdashIn this case the Plaintiff seeks to recover the sum of Rs. 6,494 and interest from the three Defendants one being the administrator to the estate of the late Gopal Lall Seal and the others being the two Defendants named on the record. As regards the Defendants other than the administrator one does not appear and as to the other he is represented by counsel and does not dispute his liability. The action arises upon a lease granted by the Plaintiff on the 1st of May 1899 for 3 years from the 1st of January 1899 and was for the occupation of certain premises which, it is alleged, were to be used for the purposes of a club. There is no dispute as to the liability of all three parties during the pendency of the lease which came to an end on the 1st of January 1902, but the two Defendants other than Gopal Lall Seal held over after the expiration of the lease and remained in occupation of the premises up to June 1903 and the Plaintiff now seeks to recover the sum he claims by way of rent fur the use and occupation of the land and premises so occupied. In order for the Plaintiff to succeed on this the onus is upon him to show me that on the expiration of the old lease a new contract was created by the Plaintiff on the one hand and the three Defendants on the other making themselves jointly and severally liable to perform the conditions of the tenancy, for it is contended by Mr. Mitter on behalf of the Plaintiff that if such contract existed the estate of Gopal Lall Seal, who died in May 1902, is liable as long as either of the other Defendants remained in occupation of the premises. Now I do not find sufficient or in fact any evidence that leads me to the conclusion that Gopal Lall did so assent. There is no doubt that the Plaintiff was anxious after the expiration of the lease to treat Gopal Lall as a tenant, but there is a total absence both of oral or written evidence to show any assent by Copal Lall. I think the proof on the point should, to justify me in giving judgment in favour of the Plaintiff, be clear and conclusive. I therefore decide that there was no contract between Gopal Lall and the other two Defendants to hold over the premises from the landlord jointly at the rent claimed or at all. If Copal Lall was in just occupation of the premises as well as of the other two Defendants, of which I have no evidence, I think that should be treated as merely a holding over of the premises at the will of the landlord and there is clear authority on the case of Draper v. Crofts and Bonllett 15 M. & W. 166 (1846) that the holding over by one or more co-tenants without the consent of the others cannot render the persons not so holding over liable for rent. Copal Lall Seal, as I have said, died in May 1902, and Mr. Chaudhuri who appears on his behalf has admitted his liability to pay rent up to the time of his death. I therefore give judgment against the Defendants Nos. 2 and 3 For the amount claimed upon the writ and interest at 6 per cent. on decree and I give judgment against Mr. Belchambers as administrator for such amount of rent as became dun up to Gopal Lall Seal''s death with interest on decree at 6 per cent. The Plaintiff to have the costs of the section on scale No. 2.