1. The plaintiff-appellant who is a zamindar along with his brother of a certain plot of land in a village sued the defendants-tenants Lallu and Abdul Ghani for recovery of rent. The other brother Abdul Rashid was not made a party either as plaintiff or as defendant. It is obvious from the tenor of the plaint that he desired to sue under the provisions of Section 266(1), Tenancy Act. What was stated in para. 1 of the plaint was that he was the zamindar making collections in respect of the muafi land situated in a certain village. The obvious interpretation of these words will be that he sued for himself and as agent of his brother. It was argued here by the respondents learned counsel that the mere statement of being a collecting co-sharer did not indicate a claim that he was an agent of his brother. It is not apparent how otherwise except by reason of agency one co-sharer can collect rent on behalf of another. A specific issue was raised whether the plaintiff was agent of his brother or not but that issue was missed through the incapacity of the legal practitioners in the Court of the Assistant Collector. That issue must now be decided. If the plaintiff is held to be the agent of his brother Abdul Rashid for the purpose of collecting rents then he is entitled to collect the entire amount of rent which may be due from the defendants Lallu and Abdul Ghani.
2. If he is not such agent, he has made Abdul Rashid a defendant to the suit, and, therefore, he is entitled to receive half the rent under the provisions of Section 266(3). On this point the lower appellate Court was of opinion that under the provisions of Section 22, Lim. Act, the suit for the recovery behalf the rent of 1321 Fasli was time barred because the other brother was not made a party within the period of limitation for the recovery of rent due for that year. The learned Judge has not attached the importance that is due to the words 'as regards him' in Section 22. What that Section 22 lays down is:
Where, after the institution of a suit, a new plaintiff, or defendant, is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
3. The words of importance are 'as regards him.' If the substitution of a now defendant is made the other defendants cannot claim limitation from the date the new defendant is made a party. This reasoning is supported by a Bombay ruling reported in Shivubai v. Shiddeshwar A.I.R. 1921 Bom. 152. It was argued by the contesting defendants' learned counsel here that the plaintiff's suit was not valid until Abdul Rashid was made a party, Abdul Rashid, however, is not made a party to validate the plaintiff's suit but merely to settle disputes between co-sharers in case the tenants should plead that payment was made to the other co-sharer. It is quite true that if the Courts should consider Abdul Rashid as plaintiff and desire to give relief to Abdul Rashid, in that ease, of course, Abdul Rashid's suit as plaintiff for his half share of the rent of 1331 would be time barred. If a Court desires to give relief to the plaintiff in case he is not an agent of his brother on the ground that the brother is now a party (defendant) and is willing that the plaintiff should receive the entire rent, in that case, of course, Abdul Rashid's share of the rent cannot be recovered for the year 1331 Fasli. In that case the limitation must be considered as regards Abdul Rashid and as regards him the suit must be considered to have been instituted for his benefit on the date on which he was made a party.
4. On these considerations I set aside the decrees of both the subordinate Courts and remand the suit to the trial Court for a trial in accordance with the instructions given here. The first point to be determined is whether Abdul Haq is an agent of Abdul Rashid. If he is proved to the satisfaction of the Court to be such agent he will be entitled to recover the entire amount of rent due from Lallu and Abdul Ghani for both the years 1331 and 1332 Fasli. If he is held not to be such agent, the plaintiff can recover only half the rent which is his share, but that half he can recover for both years 1331 and 1332 Fasli. The amount of the rent due will of course have to be determined by the trial Court.
5. Costs here and heretofore shall abide the result. The parties may produce further oral and documentary evidence.