1. These two appeals are directed against the concurrent decisions of the Courts below arrived at in two-suits for assessment of fair and equitable rent and for recovery of damages for use and occupation of lands for the period from 1331 to 1333 B. S., as also for other reliefs. The defence of the contesting; defendant, defendant 1 in the suit, was that there was no relationship of landlord and tenant between him and the plaintiff in the suit: that the lands in respect of which assessment of fair rent was asked for, were held by him as kaimi mukarari jama under the pro forma defendant 2 in the suits. It was also pleaded in defence that the suits as laid were not maintainable inasmuch as all the cosharer landlords had not instituted the suits as plaintiffs.
2. It would appear from the finally published Record of Eights that the plaintiff was landlord of the contesting defendant in the suits in respect of the lands mentioned in the plaint: the defendant being a tenure-holder. The entries in the record further show that the defendant was paying certain amounts to the pro forma defendant 2, as rent, but no rent was shown as payable to the plaintiff. The record however contained a note that the tenancies forming the subject matter of these suits were liable to be assessed with rent in respect of the shares of the cosharar landlords, of whom the plaintiff was one. The plaintiff's claim was therefore based upon the state of things appearing from the finally published Record of Rights, no rent having: been settled as payable by the contesting defendant in the suits in respect of the plaintiff's share.
3. The Courts below have agreed in overruling the defence of defendant 1 in the suits, and in assessing fair and equitable rent as prayed by the plaintiff in the suits. The lower Courts have also passed decrees in favour of the plaintiff, for damages for use and occupation of the lands in suit for the years 1331, 1332 and 1333 B. S., the measure of damages being the fair and equitable rent assessed in the suits.
4. Of the various points raised in support of the appeals to this Court the one relating to the maintainability of the suits may be considered first. The position that in a suit by a cosharer landlord as plaintiff for assessment of rent payable to such cosharer landlord it is not necessary that the other cosharars should join as plaintiffs where there is no dispute about the extent of the share of the co-sharar plaintiff, based on the principle that a suit to have fair and equitable rent assessed was consistent with and arises out of the general law, and was not one which the landlord was required or authorized to do under the Bengal Tenancy Act within the meaning of Section 188 of the Act as has been accepted in this Court: see Chiranjib San v. Mohendra Nath Biswas : AIR1929Cal90 Dhananjoy Manjhi v. Upendra Nath  46 I.C. 428 As has been noticed by Rankin, C. in the case of Raj Chandra Bhowmick Habibulla : AIR1930Cal693 the observations of Adami, J., of the Patna High Court in Partap Mahton v. Mt. Wazirunnessa A.I.R. 1925 Pat. 559 Shan it may be unnecessary to join the other cosharers as plaintiffs as 3. 188 did not apply, but surely they should have been made parties defendants, so that the assessment when made might bind all equally, were sound in principle. In view of the fact that all the cosharers were joined as defendants in the suits out of which these appeals have arisen, the question of the maintainability of the suits by the plaintiff for assessment of fair and equitable rent must be decided against the appellant;.
5. It has in the next place bean argued that the plaint in the two suits give sufficient indication that the suits were under the Bengal Tenancy Act, to which the provisions of Section 188 of the Act were applicable. There is no doubt that in the cause title, the suit has been loosely 'described as one under the rant law, but that did not necessarily bring into operation the provisions of the Bengal Tenancy Act, when it is apparent from the plaint that the main reliefs claimed by the plaintiff was under the general law. It is impossible therefore to give effect to the argument in support of the appellant's contention in these appeals, that the suits were under the provisions of the Bengal Tenancy Act; nor is it possible to accept the contention that the suits were virtually for enhancement of rent.
6. The learned advocate for the appellant has not contended that the plaintiff not having realized rent from defendant 1 for a period of 40 years or more, the claim for assessment as made in the suits was barred by limitation. It is somewhat difficult to appreciate the force of this contention in view of the entries in the finally published Record of Eights, which go to indicate that defendant 1 is a tenant under the plaintiff in regard to a share, and that rent was not being paid to the plaintiff in respect of her share, and further that so far as the plaintiff was concerned, rent was liable to be assessed, but had not been assessed. The fact that rent has not in point of fact been paid for a length of time, wall over 12 years before suit, could not possibly be a ground for dismissal of a suit for assessment of rent. The right to have fair rent assessed continues so long as relationship of landlord continues. The contesting defendant having failed to substantiate his defence that there was no relationship of landlord and tenant as between him and the plaintiff, the liability of the defendant for rent assessed, on the prayer of the plaintiff, remained, A cosharer landlord in the position of the plaintiff in the suit was entitled to realize rent from the tenant defendant as her title to the lands could not even be challenged, and may be taken to have been established: sea Dhananjoy Majhi's case and Chiranjib Sen's case referred to above, in another connexion. The question of limitation as raised by defendant 1 in the suits has no substance in it, and must be overruled. It may be mentioned that the case of Maharaja Birendra Kisore v. Anandapriya Baishanabi  30 I.C. 946 cited by the learned advocate for the appellant in support of his contention, can have no possible application to the facts of the cases before me, regard being had to the presumption arising from the finally published Record of Rights, which has not been rebutted in any way. In that case, the defendant was treated as a trespasser, and the plaintiff did not elect to treat him as a tenant on receipt of rent from him. The plaintiff was himself found to be not in possession within 12 years: in those circumstances the claim for assessment was held to be barred by limitation.
7. It had been contended also in these appeals, that in assessing fair and equitable rent the Courts below should not have invoked the provisions contained in Section 7, Ben. Ten. Act. The judgment of the Courts below indicate clearly that although reference was made to Section 7, the basis of assessment as made by the trial Court, and accepted by the Court of appeal below, was the one to which reference was made in the plaints. The gross collection from tenants under defendant 1 has been taken into account, and fair and equitable rent payable by defendant 1 to the plaintiff has been determined, after making allowances that should be made on account of collection charges and profits. No other basis has been suggested and none could be suggested in the matter of working out the rent which was fair and equitable, so far as defendant 1, the tenant was concerned. It may be pointed out in this connexion that there is nothing inherently wrong in referring to the principles embodied in Section 7, Ben. Ten. Act, in trying to arrive at the correct conclusion, so far as the assessment of fair and equitable rent was concerned, in cases which do not come within the purview of the Act. The decision of the Courts below on this part of the case appears to me entirely correct and unassailable.
8. Coming next to the decrees as passed against defendant 1 for damages for use and occupation for the period 1331 to 133-3 B. S., as claimed in the suits, there is absolutely no substance in the point that the decrees for damages should have been made against the cosharer landlord defendant 2 in the suit. As has been pointed out by the Court of appeal below, no case has been made out for decrees against the defendant, and he could not be held liable for such damages. It is contended next, in this part of the case, although no such contention in the form it has been raised before me, was advanced, or even suggested in either of the Courts below, that the decrees for damages for use and occupation passed against the appellant were not sustainable, for the period 1331 to 1333 B. S., which has been mentioned by the Subordinate Judge in the Court of appeal below as the years in suit. Reliance has been placed by the learned advocate for the appellant on the decision of the Patna High Court in the case of Partab Mahton v. Mt. Wazirunnessa (i) in which it was held that in a suit for assessment of a fair and equitable rent, the plaintiff was not entitled to claim rent in arrears at the rate to be assessed as fair and equitable, in the suit. The accepted view however so far as this Court is con-corned, seems to be that there was nothing to prevent the landlord from claiming back rents, in a suit for assessment of fair and equitable rent, if the area in suit was in use and occupation of the tenant, provided the period for which the claim was made was within that proscribed by the law of limitation that the plaintiff in such a suit could recover arrears, or back rent: see Jagannath Majhi v. Jumman Ali Patwari  29 Cal. 247 Bhupendra Kumar Chakrabutty v. Surjakanta Rai Choudhury 0043/1923 : AIR1924Cal128 and Manmatha Nath Pal v. Surendra Nath Bose : AIR1925Cal463 .
9. On the principle on which the above cases have been decided in this Court there cannot be any bar to a decree for rent or damages for use and occupation in a suit for assessment of rent, if the fact of possession of the lands in respect of which assessment is prayed, has been admitted or proved, and if the claim was not barred by limitation, In the cases before me, the position has not been disputed that the tenant has been possessing during the period from 1331 to 1333 B. S., for which claim for damages for use and occupation was made by the plaintiff in the suit, and has not paid any rent payable to the plaintiff in respect of her share. There is no doubt that the claim was within time, so far as the period of limitation was concerned. The only question that seems to have been raised in the trial Court, on this part of the case was that relating to the sum recoverable for use and occupation for the three years from 1331 to 1333 B. S., and 1 am in entire agreement with the Court of first instance in holding that the fair and equitable rents determined by the Court should be the best measure of damages per year, which the plaintiff could recover from defendant 1, for use and occupation of the lands in suit in both the cases. '
10. As indicated above, the contentions urged in support of the appeals cannot be accepted
11. In the result the decision of the Courts below and decrees passed by them are affirmed, and the appeals are dismissed with costs. One hearing fee only will be allowed for the two appeals.
12. Leave to prefer appeals under the Letters Patent is refused.