Norris and Beverley, JJ.
1. The plaintiffs in this suit are the 10 annas co-sharers of a certain zemindari mehal, No. 6490 of the Mymensingh Collectorate towjee. That mehal appears to have formed a portion of a larger estate which was brought to sale for arrears of revenue and purchased by Government in the year 1833. During the time the estate was in the khas possession of Government, the mehal in question was detached from the larger estate and formed into a separate estate, and in 1863 it was sold to the present plaintiffs and others.
2. The mehal appears to comprise, and indeed to consist of, an under-tenure or dependent taluk which is held by the defendants, some of whom are also co-sharers in the zemindari mehal. This taluk is said to have existed before the Permanent Settlement; it was certainly in existence at the time the Government purchased the zemindari in 1833, and it was settled on several occasions at varying rents during the time the zemindari was in the khas possession of Government. After the purchase of the zemindari by the plaintiffs and others, an attempt was made to eject the talukdars, but that attempt was unsuccessful, and it seems to have been then decided Hurgobind Doss v. Kalachund Sahaye 2 Wyman Part II p. 29 that the tenure was a permanent one. Later on an attempt was made to enhance the rent of the tenure, but through some informality that attempt also failed. The result is that the taluk is still being held at the same rent at which it was last settled by Government in 1854, and the purchasers of the zemindari have as yet derived no benefit whatever from their purchase in 1863.
3. The plaintiffs accordingly brought the present suit to have an enhanced rent assessed upon the taluk, and inasmuch as the other 6 annas co-sharers refused to join them as plaintiffs, being themselves also co-sharers in the taluk, they made them party-defendants in the cause. It is admitted that the plaintiffs collect their share of the rent separately.
4. But the lower Courts have found that, whether the taluk existed before the Permanent Settlement or not, the rent is liable to be enhanced, and both Courts accordingly decreed the plaintiffs suit the Lower Appellate Court fixing the assessment at the full rate claimed in the suit. In second appeal Mr. Jackson has questioned both the correctness of the finding that the rent was liable to be enhanced and the principles upon which the assessment has been made by the Lower Appellate Court. We do not think the appeal ought to succeed on either of these grounds, but it is unnecessary to consider them at length, because we think there is another ground of appeal which is fatal to the present suit.
5. That ground is that, having regard to the provisions of Section 188 of the Bengal Tenancy Act, the plaintiffs, as being some only of the joint landlords, are not entitled to maintain this suit.
6. Both the lower Courts have decided this question in favour of the plaintiff's, the Lower Appellate Court being of opinion that Section 188 is not applicable to a suit for the enhancement of the rent of a tenure. The District Judge relies on the decision in Prem Chand Nuskur v. Mokshoda Debi I.L.R. 14 Cal. 201 and attempts to distinguish the present case from that of Gopal Chunder Das v. Umesh Narain Chowdhry I.L.R. 17 Cal. 695.
7. Mr. Jackson in this appeal relies upon the latter case and upon the Pull Bench decision in Beni Madhub Roy v. Jaod Ali Sircar-I.L.R. 17 Cal. 390.
8. We are of opinion that the provisions of Section 188 must apply to the present case, unless it can be shown either (i) that the plaintiffs and their co-sharers are not 'joint landlords,' within the meaning of that section, or (ii) that the bringing of a suit to enhance the rent is not a thing which the landlord is authorised to do by virtue of the Act.
9. The term 'joint landlords' is not defined in the Act. It was suggested by Mr. Evans upon the analogy of Section 61 of the Act, that the term might be equivalent to 'co-sharers to whom the rent is payable jointly,' and that it does not include a co-sharer who is in separate collection of his share of the rent. Mr. Evans argued that under the Act when rent is payable to co-sharers jointly, such co-sharers are bound to give a joint receipt, but that no co-sharer who was in separate receipt of his share of the rent would be bound to join in such joint receipt. And it was suggested that such a co-sharer is not therefore a joint landlord within the meaning of Section 188. We are unable to accept this argument. A 'landlord' is defined in the Act as 'a person immediately under whom a tenant holds,' and if a tenant holds under two or more co-sharers, those co-sharers must be joint landlords whether the rent is payable to them jointly or separately. We see no sufficient reason to hold that the expression 'joint landlord' in Section 188 is equivalent to the expression 'co-sharers to whom the rent is paid jointly' in Section 61. To do so would be to hold that a co-sharer who collects his rents separately has all the powers of a sole landlord under the Act, and to defeat the very purpose for which Section 188 would seem to have been enacted. We think that the term 'joint landlords' must be held to include all the co-sharers immediately under whom the tenant, holds, whether such co-sharers receive their quota of rent from the tenant jointly or separately.:
10. In the case of Gopal Chunder Das v. Umesh Narain Chowdhry I.L.R. 17 Cal. 695 it was held, upon the construction of Sections 28 and 30 of the Act, that the bringing of a suit to enhance the rent of an occupancy raiyat was a thing which the landlord was authorised to do by virtue of the Act and by virtue of the Act alone. The learned District Judge has attempted to distinguish between a suit to enhance the rent of an occupancy raiyat and a suit to enhance the rent of a tenure-holder. Mr. Evans has endeavoured to support this distinction. It is contended that a right to enhance rents subject to certain limitations is a right conferred on the zemindar under the terms of the Permanent Settlement, and that all that the Tenancy Act does is to impose certain limitations upon that general right--Bunchanund v. Hurgopal Bhadery 1 Sel. Rep. 145 Hurronath Roy v. Gobind Chunder Dutt L.R. 2 I.A. 193; 15 B.L.R. 120 Bamasoondery Dassyah v. Radhika Chowdhrain 13 Moo. I.A. 24.8.
11. The sections of the Act that deal with the enhancement of the rent of tenures are Sections (6, 7, 8 and 9. Section 6 deals with tenures that have been held from the time of the Permanent Settlement, and it declares that the rent of such tenures shall not be liable to enhancement except on proof of one or other of two things--either '(a) that the landlord under whom it is held is entitled to enhance the rent thereof either by local custom or by the conditions under which the tenure is held, or (b) that the tenure-holder, by receiving reductions of his rent, otherwise than on account of a diminution of the area of the tenure, has subjected himself to the payment of the increase demanded, and that the lands are capable of affording it.'
12. The first Court found that the tenure in question in the present case was not in existence at the time of the Permanent Settlement. The Lower Appellate Court thought it unnecessary to come to a finding upon this point, inasmuch as it was proved that under the conditions of the tenancy the tenure was liable to enhancement. We think that, having regard to the settlement proceeding of 1854, the previous litigation between the parties and the manner in which the tenure has been dealt with, there can really be very little doubt that the tenure was in existence at the time of the Permanent Settlement. We think it unnecessary, however, to remand the case for a finding upon this point. It is only material as regards our present argument so far that if the tenure in question is one of the character referred to in Section 6, its rent can only be enhanced upon proof of something referred to in that section; that is, as we understand it, in a suit brought under the Act.
13. But even supposing that the tenure does not date from the Permanent Settlement, we think that under the terms of Sections 7--9 the rent could only be enhanced either by amicable agreement or by a suit brought under the Act. Section 7 deals with the limits up to which the Court may decree enhancement of the rent, Section 8 gives the Court power to order gradual enhancement, and Section 9 provides that the Court shall not again enhance the rent within fifteen years from the last enhancement. We think that, having regard to these sections, and more specially Section 7, it is only by virtue of the provisions of this Act that the landlord can sue for enhancement of the rent of a tenure. From the plaint we think it is quite clear that the plaintiffs themselves thought they were suing under the Tenancy Act. That being so, we think that the plaintiffs in bringing the present suit intended to take the benefit of the Act, and accordingly under the Full Bench decision Beni Madhub Roy v. Jaod Ali Sircar I.L.R. 17 Cal. 390 they were bound to act in concert with their co-sharers.
14. For these reasons we think that this appeal must be allowed and the plaintiffs suit dismissed; but as we entertain no doubt of the correctness of the finding that the rent is liable to enhancement, and are of opinion that the conduct of the defendants is vexatious, we refuse to allow them any costs.