B.L. Hansaria, J.
1. A suit for realisation of arrear rent for the period from 16-10-1972 to 16-5-1973 was filed against the petitioner by one Deva Kanta Bora and his wife, Smt Tarinibala Bora. As Deva Kanta died during the pendency of the suit, all his heirs were brought on record. The suit, was decreed by the learned Munsiff. Morigaon, which judgment and decree have been affirmed by the learned Assistant District Judge, Nowgoing,
2. The only point raised before ma by Shri B. Sharma, who appears for the petitioner, is that the suit was not maintainable and as such the learned Munsiff had no jurisdiction to entertain the same. According to the learned counsel, the suit is not maintainable because it being the case of the plaintiffs in the plaint that the suit property had been gifted to Tarinibala by Debo Kanta on 18-7-1972, Tarinibala could not claim the rent for a period subsequent to 18-7-1972 without getting a declaration of her title to the suit premises. That a transferee from original lessor cannot succeed either to evict the tenant or to realise arrears of rent despite Sec. 109 of the T, P. Act, is sought to be established by referring to certain decisions of this Court The first is in S. A. No, 113 of 1965, where one Taufiquor Rahman had come forward to evict the tenant on the averment that he had become the owner of the premises on the same having been gifted to him by Kayambir Rahman. The learned single Judge who decided the appeal agreed with the Courts below that, they were right in directing the plaintiff to file a regular suit for declaration of his title to the suit land as the courts below had entertained some doubt about the soundness of mind of Kayambir when he had executed the deed of gift and also because the suit land had not been mutated in the name of Taufiquor on some objection being raised by Talmijur, his brother.
This decision in the Second Appeal was upheld in L. P. A. No. 9 of 1969: (Reported in AIR 1973 Gauhati 139). Both these decisions had not examined the relevance of Section 109 of the T. P. Act in this connection, which had been gone into in S. A. No. 80 of 1968 (Assam), which also relates to a suit filed by Taufiquor against some other tenant for eviction. It has been held in this appeal that before the provision of Section 109 can be invoked, the transferee must prove that there was a valid transfer in his favour in accordance with law. It is further pointed out that when such a transferee files a suit for ejectment of a tenant inducted by the original lessor, the tenant is not debarred from challenging the title of the plaintiff. The court then came to the conclusion that when the plaintiff is not the original lessor and he bases his claim on a transfer from the original lessor and there is no proof of attorrment or payment of rent by the lessee to the plaintiff, he cannot succeed in the suit without strict proof of the transfer of title from the original lessor.
3. The above decisions no doubt support the case of the petitioner, if what has been stated relating to an ejectment suit is applied to a suit for arrears of rent also. Even then, I do not think if the petitioner can succeed in the case. * It is worth noting that in the aforesaid decisions Kayarnbir had not joined himself as a plaintiff in the suit; whereas in the case at hand Deva Kanta was also one of the plaintiffs, Not only that Deva Kanta was a plaintiff to start with; but his heirs which include Tarinibala were substituted on his death which was on 3-3-1974. According to me, this makes a vital distinction, because if the gift to Tarinibala be bad in the eye of law for any reason whatsoever, right of Deva Kanta, who has been held by both the courts below to be the landlord of the petitioner, though this had also been challenged, to realise rent would remain unaffected, Shri B. Sharma contends that impleading of Deva Kanta as plaintiff on the face, of the averment in the plaint that the property has been gifted to Tarinibala is a clear case of misjoinder of parties. But then no issue at all on the question of mis-joinder has been framed. As per the provisions of Order 1, Rule 13, C. P. C, an objection relating to misjoinder has to be taken at the earliest possible opportunity and any such objection not so taken shall be deemed to have been waived. I have also noted that the issue relating to non-maintainability had not been pressed by the petitioner before the learned Assistant District Judge. As the approach to this Court is in revision, relief under the same can be claimed if the court is satisfied about miscarriage or failure of justice, which I am not because of what has been stated above,
4. The petition therefore stands 'dismissed.