Macpherson and Banerjee, JJ.
1. We think the District Judge has committed an error in holding on the strength of the decision cited by him--Gopal Chunder Das v. Umesh Narain Chowdhry I.L.R. 17 Cal. 695--that this suit is not maintainable. The present case is, we think, clearly istinguishable from that case. It is based on a kabuliyat executed by the defendant, and looking at that document as a whole, the effect of it clearly was to create a separate tenancy under the plaintiff. The kabuliyat sets out the total area of the land, the area which proportionately would belong to the plaintiff; and the defendant stipulates to pay the plaintiff rent for that area. It gives the plaintiff a right to measure the land, and the defendant undertakes to pay increased rent for any increase that may be found over the area for which rent is paid, and he is entitled to a deduction for any diminution in the area. It is quite obvious that in the case of Gopal Chunder Das v. Umesh Narain Chowdhry I.L.R. 17 Cal. 695 there was no such agreement. In that case there was a mere undertaking by the tenant to pay to each of the landlords their proportionate share of the rent, and it was held that the effect of that arrangement was not to split up the tenancy, or create a separate tenancy under each of the landlords. Here the tenant, by his own act, has given the plaintiff the power to deal with him as if he was his tenant alone, without any regard to the interests of the co-sharers, and should the defendant be subjected to separate suits, at the instance of the co-sharers either with reference to enhanced rent or measurement, he has no reason to complain.
2. The District Judge has dismissed the case, but the ground on which he has done so does not dispose of the questions which were raised. We think it is necessary here to notice one of them, and that is the solehnamah, which the defendant executed some few years after the kabuliyat, in execution of a decree on which the tenure had been attached. That solehnamah states the rent to be less than that specified in the kabuliyat; but it contains an agreement by which, on the measurement of the tenure, the defendant would be liable to pay a higher rent for any increase, with effect from the year 1291, than he would be liable to under the agreement. Now, the plaintiff did not set up this solehnamah. He rested his case, as set out in the plaint, entirely on the kabuliyat. The plaint makes no reference to the solehnamah. The defendant set up the solehnamah, and contended that he was only bound to pay as rent the amount therein specified. What he wishes to do is to take advantage of the solehnamah as regards the amount of rent payable, repudiating the terms which would make him under certain circumstances liable to pay a higher rent than he would be required to pay under the kabuliyat. It is quite clear that he cannot be permitted to set up a case like that. The solehnamah must be taken as a whole or not at all. In our opinion the objection which the defendant took, that the document was inadmissible, must prevail.
3. The case must go back to the District Judge to be decided according to the claim as set out in the plaint, viz., with reference to the rent specified in the kabuliyat, to the area as found on measurement, and to the amount of rent which may be due in accordance with its terms.