1. This appeal arises out of a suit for arrears of rent brought by the plaintiff-appellant for recovery of rent for the years 1329 to 1331 Fasli. Defendants 1 and 2 are the tenants of the land in respect of which the rent is claimed. The plaintiff is one of three co-sharers of the 'mahal' in which the holding in question lies. The suit, as framed, was one for recovery of the whole rent payable by defendants 1 and 2. The plaintiff relied upon an agreement between his co-sharers and himself entitling him (plaintiff) to realize the whole rent from defendants 1 and 2.
2. Defendants 1 and 2 contested the plaintiff's right to recover the rent without other co-sharers being joined as co-plaintiff with him. At a later stage the plaintiff impleaded defendants 3 and 4, who are the other co-sharers in the 'mahal.' The latter stated that they had no concern with the rent in question. In other words, they did not object to the plaintiff recovering the rent in suit. Their statement supports the plaintiff's allegation made in the plaint that there was an arrangement among the co-sharer under which the plaintiff alone was entitled to sue for the whole rent from defendants 1 and 2.
3. The Court of first instance decreed the suit; but the lower appellate Court has dismissed it, holding that the plaintiff alone could not sue for recovery of the entire rent and that the period of limitation for a suit for arrears of rent had expired when the other co-sharers were impleaded as defendants. It appears that the suit remained pending for some reason or other, for several years, and when defendants 3 and 4 were made parties the period of limitation for even the last of the years in suit had run out.
4. It is contended on behalf of the appellant on second appeal that the plaintiffs appellant is entitled to sue for the whole rent, notwithstanding the provisions of Section 194, because the other co-sharers have ceased to be landholders, as defined in the Tenancy Act. This proposition is apparently based on what the co-sharers stated when made parties to the case. I do not think their statement can be construed as meaning that they had no interest left in the land. As I construe it, they merely declared that, in consequence of an arrangement for enjoyment of profits, the plaintiff was assigned the right to recover the rent from defendants 1 and 2. The right of the other co-sharers in the holding is not put an end to by an arrangement of this kind, which is generally of a temporary character. There is no other evidence on this question, and the utmost that can be said on the strength of what the co-sharers stated is that the plaintiff is conceded, by his co-sharers, the right to recover rent from, defendants 1 and 2. I am, therefore, unable to accept the contention that the plaintiff alone should be considered as landholder with reference to the holding of defendants 1 and 2.
5. The view of the lower appellate Court that the plaintiff is not entitled to recover even his own share of the rent in respect of the years in suit cannot be supported. Section 194, Tenancy Act (2 of 1901) precludes one of several co-sharers from suing for the whole rent except through an agent appointed by them conjointly. Sub-Section 2 of that section enables one of several co-sharers to sue for his share of rent if there is a subsisting agreement among the co-sharers authorizing the plaintiff to sue for his share of the rent. As pointed out in Mankohar Lal v. Baldeo Singh : AIR1927All505 , the special contract, referred to in that subsection, is not one relating to the right of one of the co-sharers to recover the whole rent. Sub-Section 3, Section 194 provides every one of several co-sharers to institute a suit for recovery of his share of the rent if the other co-sharers refuse to be joined as plaintiffs; but in such a case such other co-sharers must be impleaded as defendants. The difference between a case governed by Sub-section 2 and the one under Sub-section 3 is that in the former case the other co-sharers need not be joined, whereas in the absence of a special contract, referred to in Sub-section 2, the co-sharers who refuse to be joined as plaintiffs should be impleaded as defendants; but the plaintiff's claim must be limited to his share of the rent in either case.
6. In view of the attitude exhibited by the other co-sharers, when joined as defendants, it is obvious that they were not willing to join with the plaintiff in a suit for arrears of rent to be brought against defendants 1 and 2. Even when made parties as defendanes, they disclaimed all interests in the matter. Under these circumstances, I think that the defect of nonjoinder due to the other co-sharers of the plaintiff not being impleaded as plaintiffs or defendants originally was cured by subsequent addition of defendants 3 and 4 in the array of parties. If they had been joined as co-plaintiffs within limitation, the suit would have been good for the whole rent; bat having been impleaded only as defendants, the plaintiff is entitled, if at all, to recover only his share of the rent under Section 194(3).
7. It is contended by the learned advocate for the respondents that the other co-sharers having been joined after the expiry of the period of limitation, the whole suit must fail. His contention is that the suit was bad in its inception and it was only when defendants 3 and 4 were made parties that the suit for the first time became one that could be entertained in law. I am unable to accept this line of argument. On defendants 3 and 4 being made parties, the suit which should be deemed to have been instituted on the date the plaint was presented became absolutely flawless so far as the plaintiff's right to recover his own share of the rent is concerned. The question of limitation stands altogether on a different footing, and must be decided in accordance with Section 22, Lim. Act, which provides that:
if, after the institution of a suit, a new defendant is added, the suit shall as regards him be deemed to have been instituted when he was so made a party.
8. It follows that as against the defendants originally impleaded the suit should be deemed to have been instituted when the plaint was presented and as against the newly added defendants the date of institution for purposes of limitation is to be the date on which they were made parties.
9. The suit as against defendants 1 and 2 having been instituted within time, any relief to which the plaintiff is entitled as against them should be granted. The plaintiff is not entitled to any relief against the newly added defendants and indeed, he does not claim any. They have been made parties to indemnify defendants 1 and 2 against any possible claim which may be made by other co-sharers in respect of the rent claimed by the plaintiff and to be decreed to him in case the suit succeeds. The case is not one in which the right of the plaintiff and the pro forma defendants, who are his co-sharers, is one and indivisible. Section 194, Tenancy Act creates a division of interests in respect of the rent payable to them jointly, where one of the co-sharers is unable to obtain the joinder of his co-sharers for bringing an action for the whole rent. The law expressly allows one of the co-sharers in such a case to sue for and recover his share of the rent. Under these circumstances, I am of opinion that the joinder of defendants 3 and 4 after the expiry of the period of limitation prescribed for a suit for arrears of rent cannot affect the liability of the tenant defendants for the plaintiff's share for which they were sued within time, For the foregoing reasons, I allow the appeal, set aside the decrees passed by both the Courts below and remand the case to the Court of first instance through the lower appel late Court with the direction that the plaintiff's share of the rent in suit be ascertained and a decree be passed for that amount. Parties shall pay and receive costs in proportion of success and failure.