1. The plaintiff, the owner of 51/15/6th share in the shrotriem, sues to enforce acceptance of pattas. As he is only a joint owner he is not entitled to sue for proportionate rent. This question has already been decided by this Court. See C.M.A. No. 125 of 1907 on the file of this Court.
2. But it is contended that the plaintiff had already sued and obtained decrees for enforcement of pattas for his 5 1/8th share for fasli 1315 and as the defendants had executed muchilikas for Faslies 1315 and 1316 the plaintiff's right to enforce pattas for his 5 1/8th share should therefore be declared in this suit.
3. As to the pattas of the Fasli 1315, it is contended by the Advocate-General that they were executed in pursuance of the decree and there is no res judicata as the decision with reference to the patta for Fasli 1315 was on a pure question of law.
4. Assuming this to be so, we do not see why the agreement between the parties to pay proportionate rent for the plaintiff's 51/8th share evidenced by the execution of pattas and muchilikas for fasli 1316 should not be enforced.
5. Whether such agreement is binding on the other co-owner is not a question now for consideration, as he is not a party to this suit. We see nothing illegal in the agreement. We must therefore set aside the decrees of the courts below and declare that the plaintiff is entitled to tender a patta for his 51/8th share.
6. As the plaintiff brought a suit to enforce his claim with reference to his 5 15/16th shire and this question doss not appear to have been raised in the lower courts, we direct each party to bear his own costs.