1. This is a suit brought in the revenue Court by one Pandit Manohar Lal on his own behalf and as Mutwalli for a certain idol, and according to the judgment of the Assistant Collector, it is a suit brought for the whole rent. The District Judge disagreeing with the Assistant Collector, who had decreed the suit, has dismissed it. The facts are that the plaintiff, according to the finding of the District Judge, is one of seven co-sharers and that the other co-sharers or some of them are Mutwallis and that there is a dispute going on between them with regard to the right to collect rent and that dispute has been the subject of some legal proceedings in a civil Court and that this unfortunate defendant has already paid the rent to one of the other Mutwallis and is apparently the corpus vile over which these two quarrelsome Mutwallis are endeavouring to decide their controversy, Prima facie the suit was bad under Section 194 of the Tenancy Act, which provides that general rule of procedure familiar in such cases to English lawyers, that co-sharers in any right, title or interest shall do any act conjointly, unless they have appointed an agent to act on behalf of all of them and the defendant pleaded, in my judgment, and in that of the District Judge, quite rightly, that the claim was barred by Section 194. The language is not apt because the objection is one well-known to English pleaders as a plea in abatement not a plea in bar, that is to say, it is an objection to the success of the suit as the record stands, but not a fatal objection, as the District Judge points out in his judgment, but one which may be cured by the proper proceedings. When the objection is raised, it is open to the plaintiff either to join his other co-sharers as plaintiffs, which he is entitled to do as a right, by offering them an indemnity, or to make them defendants but if the real fact is, as frequently Happens, that he is either pigheaded, or afraid of meeting them in fair fight, he prefers not to do so but to trust to the chances of success before an incompetent Court against a defendant who has not the same materials for fighting an issue on the merits. If he does that, he is, if he comes before a Court which understands the case, hoist by his own petard, and the suit must fail.
2. In this case he seeks to avoid the effect of the rule laid down in Section 194 and this is the main point which has been argued on his behalf in appeal, by relying upon a special contract as mentioned in Sub-section 2 of the same section. In a. Court of law which dealt with these matters strictly, he would have to plead such a special contract. It was not pleaded and unfortunately no issue on the subject was framed. An issue certainly ought to be framed because it is a special matter taking the case out of a statutory provision which would certainly prevail if the special matter pleaded were not found in favour of the plaintiff. As a matter of fact, so far as I understand the matter, this special contract is not one which comes within the section at all. One can hardly expect an Assistant Collector to pay much attention to pleadings, and possibly not to the correct legal phraseology when he comes to frame his issues, but one can at least expect him to read the section which he is supposed to be applying to the facts of the case. In the same para., in which he states that the plaintiff had been collecting the whole rent with regard to the 'khatas' in the suit during past years, he goes on to say that it is evident that the plaintiff is entitled to sue alone under special contract. The special contract provided by Sub-section 2 of 194 has nothing whatever to do with the right of a plaintiff to sue for the whole rent, and is quite irrelevant as the Assistant Collector would have seen if he had troubled to read the section which he was apparently applying. The general rule being that the plaintiff cannot sue alone for his share, Sub-section 2 allows him to do so if there is a special contract by which a co-sharer in an undivided property is entitled to receive separately his share of the rent payable by a tenant.
3. In my view Mr, Girdhari Lal Agarwala is right in saying that the tenant must have notice of such special contract, because it is difficult to see how he is to know anything about his share of the rent payable by him, unless the subject-matter of the special contract is communicated to him. The learned Judge apparently treated this point with contempt and I am not surprised. He certainly found facts inconsistent with the existence of the special contract but he did not actually draw attention to what I myself think is the answer to the plaintiff's reply.
4. The Assistant Collector seems also to have treated the provisions of the wajib-ul-arz with a certain amount of indifference, because there is a fundamental inconsistency between the view which he has taken and that taken by the District Judge. The Assistant Collector says, 'the wajib-ul-arz supports the special contract.' while I no not profess to understand what this means, I infer that the Assistant Collector thought that the wajib-ul-arz gave the plaintiff alone the right to collect the whole rent. If this is what he thought, he must have been mistaken because the District Judge says that tinder the wajib-ul-arz all the mutwallis are entitled to collect rents, which appears to me to be a totally different interpretation.
5. The result, therefore, is that the plaintiff's suit is defective, that the plaintiff has deliberately refrained from applying the necessary remedy to cure what is otherwise a fatal fact and having set up a special reply to the defect, that reply has failed and there is nothing left for him to fall back upon. The District Judge finds that the suit is not a bona fide one but has been brought apparently in an attempt by the plaintiff to get a decision favourable to himself against a tenant in the dispute which is going on between himself and his co-mutwalli. I agree with the judgment of the District Judge.
6. I might add that a further point was argued by the appellant that was res judicata, but I am content to say with regard to that I am satisfied that it is not res judicata. The appeal must be dismissed with costs.
7. The plaintiff is suing for the whole amount due from the defendant-tenants in respect of a holding although admittedly there are other persons besides himself who are co-sharers in the holding as proprietors. Section 194 precludes such a suit by one co-sharer except in two cases. One case is where the co-sharer sues as an agent appointed on behalf of all the co-sharers, the other case is where there is a local custom or special contract entitling one co-sharer to receive separately his share of the rent payable by a tenant. The second case has no application to the present suit inasmuch as the suit is not by the plaintiff merely for his share but for the whole rent due to all the co-sharers. The first case is also not applicable because the plaintiff does not sue as agent on behalf of the co-sharers. He appears to me, on the strength of an agreement with the other co-sharers, to have sued as entitled to the rent in his own right, whereas under that agreement, at the most, he was only entitled to sue as agent for all the co-sharers.
8. It has been urged that because the defendants did not raise the plea in two previous similar suits that the plaintiff was not entitled to sue for recovering the whole rent from the defendants, therefore, in some way he is debarred by rule of res judicata from now raising that point. In my opinion where the law forbids a certain thing being done in a suit, no amount of failure by a defendant in previous suits to plead the positive bar created by legislature will prevent its being taken up in a subsequent suit and this is what the District Judge said in his judgment.
9. For the above reasons I concur in the finding and would dismiss the appeal.