1. This appeal arises out of a suit by one of the heirs of a deceased tenant to recover his share of (he holding, which was sold in execution of a decree for arrears of rent obtained by two co-sharer landlords and purchased by the latter.
2. The plaintiff was not made a party to the suit for rent, and he brought the suit, on the ground that he was not bound by the decree for rent and that the decree did not affect his interest, specially as the suit was not framed under Section 148A of the Bengal Tenancy Act.
3. The defense was that the suit was barred by the special limitation of two years under Article 3, Schedule III of the Bengal Tenancy Act, that the decree was one under Section 148 A and that the sale held thereunder passed the entire holding.
4. The Court of first instance dismissed the suit. On appeal the decree was reversed and the suit was decreed.
5. The defendants Nos, 1 and 2, who are the landlords, have preferred this appeal.
6. Two questions arise for our decision. The first is whether the suit is barred by limitation.
7. The ground upon which the Subordinate Judge overruled the plea of limitation was that the dispossession was by a co-sharer landlord as auction-purchaser, and he relied upon the case of Krishna Chandra v. Satish Chandra Banerjee 35 Ind. cas 365 : 201 C.W.N 872.
8. There is a conflict of decision on the point whether dispossession by a landlord as auction-purchaser comes under Article 3, Schedule III of the Bengal Tenancy Act. In the present case, it is admitted in the plaint that the dispossession was not by the landlord at the time of the delivery of possession to him as auction-purchaser but subsequent to the delivery of possession and that the dispossession was effected by the tenants, who had been settled upon the land by the co-sharer landlords, and with the help of the landlords' naib. In these circumstances the question of the landlord being the auction-purchaser does not arise and the suit would be barred by limitation [case the case of Peary Mohan Mukherjee v. Arunodoy Ghose 58 Ind. Cas. 58l; 25 C.W.N. 163]. There is, however, no clear finding that the landlord or his agent along with other defendants dispossessed the plaintiff. We think that there should be a clear finding on the point. If the Court finds that the dispossession was by the landlord or his agent, the suit would be barred by limitation.
9. The second question is whether the suit is one under Section 148A of the Bengal Tenancy Act- The learned Subordinate Judge was of opinion that it was not, 'became a suit to recover the whole rent is a condition precedent to a Section 148A suit,' If, by that, the learned Judge meant to say, that the suit must be to recover the whole of the arrears due, he is right, but if he means the entire rent payable for the holding, we do not think that that is a correct view. The learned Judge refers to the case of Baikantha Nath Sen v. Ramapati Chatterje 45 Ind. Cas. 767 : 27 C.L.J. 101, but the, facts of that case are distinguishable from the present. It appears that in that case the plaintiff sued to recover his share of the rent and did not seek to recover the entire rent due to himself and his co-sharers. There was merely an alternative prayer that if it was found that the tenant lad not paid the rent due to his co-sharers, he might be allowed to amend his plaint so as to secure a decree for the entire rent. On the other hand, in the suit for rent in the present case, the co-sharer landlord who was not in (separate collection of rent, stated that he had enquired of his other co-sharers whether they had realised any rent and the letter did not give him any information, and that in those circumstances he believed that the rent which was due to him was the only arrear due for the holding, His co-sharer were made parties to the suit and the plaintiff stated that if his co-sharers' share of the rent had remained unpaid, he (the plaintiff) was willing to pay Court fee on that sum also. He claimed a decree for the entire arrears, and prayed that his co-sharers might be joined as plaintiffs if they chose to be co-plaintiffs. The case is similar to that of Brohmanand Nath Deb Sircar v. Hem Chandra Mitra 23 Ind. Cas. 981 : 18 C.W.N. 1016 at p. 1019, In that case the learned Judges observed as follows: 'We have been invited to construe the expression 'rent due' as equivalent to 'rent payable under the contract of tenancy.' This argument in substance is that to entitle a person to claim the benefit of Section 148A he must include in the suit a claim, not for the -rent actually in arrears, but the rent payable under the contract without the deduction of any amount that might have been actually paid to the landlord. This clearly is an...untenable contention. We may further add that it has not been suggested at any stage of the present proceeding, nor was the suggestion made in the course of the original suit, that at the time of the commencement of the litigation, there was an arrear of rent due to the co-sharer landlords. The plaintiff sued for the recovery of what to his information was the whole arrear due, and that was in essence a suit for rent due to all the co-sharers, within the meaning of Section 148A of the Bengal Tenancy Act.' Those observations apply to the facts of the present case.
10. We think in these circumstances that the suit was substantially one framed under Section 148A of the Bengal Tenancy Act.
11. The question, however, whether the suit for rent was brought against the registered tenant was not gone into by the learned Subordinate Judge, because having found that the suit was not one framed under Section 148A of the Bengal Tenancy Act, it was unnecessary for him to consider the question whether the rent suit was so framed as to affect the interest of the plaintiff. As, however, we have come to the conclusion that the suit was framed under Section 148 A, we think the lower Appellate Court should consider the question whether the persons against whom the rent-decree was obtained represented the interest of the plaintiff as well, so that the sale held thereunder passed the interest of the plaintiff also.
12. The decree of the lower Appellate Court is accordingly set aside and the case sent back to that Court in order that that Court may come to a finding on the questions indicated above and dispose of the case according to law.
13. Costs to abide the result.