1. This appeal arises out of a suit for the years 1272 to 1274 M. S. brought by the plaintiff Har Gobinda Sarma against the tenants Jafar Ali and others. The plaintiff claimed to be the sole landlord and as such, claimed the entire rent of the holding. There was another suit brought by one Jagat Chandra Chakravarti against the same tenants and for the same period. The two suits were tried together as analogous. The same evidence was recorded in both the oases and the two suits were disposed of by the same judgment by the Court of first instance, although there were two separate decrees in the two suits.
2. The Court of first instance held that Har Gobinda was entitled to a 10-annas share of the rent and Jagat Chandra the plaintiff in the other suit was entitled to the remaining 6-annas share of rent.
3. It ought to be mentioned that Har Gobinda was a party defendant to the suit of Jagat Chandra. There was no appeal preferred against the decree passed in the suit instituted by Jagat Chandra. Har Gobinda preferred an appeal against the decree of the Court of first instance in his suit and on appeal the lower Appellate Court held that Har Gobinda alone had right to the entire rent and that Jagat Chandra had no right to any portion of the rent. In that view a decree for the entire rent was passed in favour of Har Gobinda. The result was that as against the tenant defendants there was a decree for 16-annas rent payable to Har Gobinda and another decree for 6-annas share of the rent in favour of Jagat Chandra. The tenant, defendants have appealed to this Court in the suit brought against them by Har Gobinda.
4. It is contended that the question whether Har Gobinda is entitled to the 16 annas of rent or only to a 10-annas share thereof, is res judicata by the decree in Jagat Chandra's suit to which Har Gobind was a party and in which it was held that Jagat Chandra had a 6-annas share in the rent.
5. We do not think that that decree operates as res judicata upon the question of Har Gobinda's right to the rent. It is true that he was a party to the suit brought by Jagat Chandra, but he had preferred an appeal in his suit and the object of the appeal was to get rid of the adjudication of the Court of first instance that he had only a 10-annas share of the landlord's interest. If, however, the decree of the lower Appellate Court in the suit brought by Har Gobinda and the decree of the Court of first instance in the suit by Jagat Chandra are allowed to stand, the result would be that the tenant defendants would be liable for the 6-annas share of the rent twice over. Under these peculiar circumstances the proper course would have been to add Jagat Chandra to the appeal which was preferred to the lower Appellate Court by Har Gobinda under the provisions of Order I, Rule 10, read with Section 107 of the Civil Procedure Code. It is true that Jagat Chandra was not made a party to the suit brought by Har Gobinda; but although he was not a party in form, in substance he contested the suit. As the learned Munsif points out, the real contest in these cases is between the plaintiffs in the two cases, both of whom say that they are the landlords. There is no question of adducing any further evidence on behalf of Jagat Chandra because the evidence in both the suits was the same and the two suits were tried together. We think, therefore, that Jagat Chandra cannot be prejudiced by being added as a party to the appeal in the suit brought by Har Gobinda and that in order to effectually and completely dispose of the matters in controversy between the parties, this course should be adopted.
6. We accordingly set aside the decree of the lower Appellate Court and send the case back to that Court with the direction that Jagat Chandra be made a party to the appeal and the appeal be heard and determined in his presence.
7. We express no opinion whatever on the merits of the case as between parties.
8. Costs will abide the result.