1. This is an appeal by the defendants against a decision of the Subordinate Judge of the first Court of the 24-Parganahs confirming a decision of the Munsiff, 1st Court, Baruipur. The plaintiff who is a co-sharer landlord sued the defendants for his share of the rent of their holding for the years 1324 to 1327. The defendants' allegation was that on the construction of the potta the plaintiff was not entitled to claim the rent at the rate for which he sued but that there should be a deduction. A written statement was filed by the defendants on the 7th April, 1921, and subsequently they applied for measurement of the land and the application was rejected on the 8th July, 1921, as having been made at a late stage of the proceedings.
2. Three points have been urged before us in this appeal. The first point deals with the decision of the learned Judge in the Court below that when a co-sharer landlord sues a tenant for his share of rent the question of abatement of rent cannot be gone into in a suit so constituted having regard to the fact that the other co-sharer landlords are not before the Court. The second contention raised before us is that the learned Judge was wrong in holding that in any case the defendants were precluded from raising the question of abatement by virtue of a decision given in suit No. 49 of 1887; and thirdly, it was urged that the Judge in the Court below was also wrong in holding that another decision in suit No. 447 of 1919 operated as res judicata on the question of abatement, it being stated that by that decision it was in fact decided that the decree in suit No. 49 of 1887 did not operate as res judicata between the parties on the question of abatement and it was urged that the plaintiff could not now contend that the decree in suit No- 49 of 1887 in fact precluded the raising of the question of abatement of rent by the defendants.
3. So far as the first point is concerned, this point has never been, so far as we can find, actually decided in this Court. In the case of Maharajah Kesho Prosad Singh v. Ramdeni Singh A.I.R. 1923 Pat. 397, it was decided by a Division Bench of that Court that in a suit by a co-sharer landlord who under an arrangement between himself, his co-sharers and the tenants is entitled to collect his share of the rent separately the tenants are entitled to apply for an abatement of rent. It is urged on behalf of the respondent that the matter has in fact been decided by a decision of a Full Bench of this Court in the case of Bhoopendra Narain Dutt v. Krishna Dutt  27 Cal. 417. We do not, however, think that that decision really covers the point which is now before us. That was a suit brought by some joint landlords against one of the several joint tenants for recovery of the plaintiffs' share of rent payable on account of the defendant's share of the tenure under a previous arrangement and it was held there that the tenant-defendant could not claim abatement under the provisions of Section 52 of the Bengal Tenancy Act. That, however, was a different suit from the present one as one out of a number of tenants was alone being sued and not as here all the tenants of the holding. There are, it is true, expressions in the judgment of the learned Chief Justice Sir Francis Maclean which would go to uphold the contention urged before us by the respondent. But those observations were not necessary for the decision of the suit and we do not think that that decision can be taken as an authority governing the proposition which is now before us. I agree with the decision to which I have referred in 2 Patna Series and it seems to be founded on good sense. This is not a suit for rent under the Bengal Tenancy Act but in fact a suit for money and the decree that would be obtained would be merely a money decree in which the right, title and interest only of the judgment debtor might be brought to sale and consequently, neither the provisions of Section 188 nor of Section 52 of the Bengal Tenancy Act really apply to the question which is now before us and it is difficult to see on general principles why in a suit of this nature the tenants should be debarred from raising the question of their right to abatement of rent and no decision that could be given in favour of the tenants could affect the shares of the other co-sharer landlords who were not before the Court and this being so it is difficult to see how any prejudice can arise by the question of abatement being raised and decided in a suit of this nature. It is said that an anomalous position would be created, namely, that the rate of rent in respect of one part of the tenure would be so much and the rent in respect of another part would be a different amount. But we do not see, however, anomalous the position may be, that it is any reason for depriving the tenants of their right of raising a question of this nature. Then it is stated that although there are now separate collections there is nothing to prevent a subsequent suit by all the co-sharer landlords for the whole rent of the tenure and it is stated that if the question of abatement is raised and decided in a suit of this nature prejudice may accrue to the other co-sharer landlords if it is ever necessary to bring a joint suit of the nature which I have indicated. But here again it is difficult to see how a decision in this suit of the question of abatement can in any way prevent a subsequent suit by the co-sharers or prejudice them in any way with regard to the decree they may obtain in a suit brought by the whole body of co-sharers; and on general principles, therefore, if there is no prejudice to the absent co-sharers it is difficult to see why the tenants should be precluded from raising the question as to abatement in a suit brought by any of the co-sharers. We think, therefore, that the learned Judge was wrong in saying that the tenants were precluded by the nature of the suit from raising the question of abatement of rent. So much then for the first point.
4. So far as the second point is concerned it appears that Suit No. 49 of 1887 was a suit by the holders or owners of a 3 annas and 15 gundas share and the claim in the suit was for the whole 13 annas rent. Haridas Dutt who is the predecessor-in-interest of the plaintiff in this suit was originally a defendant in that suit and Mr. Miller the Official Trustee of Bengal was the predecessor-in-interest in that suit of the present appellants. Now the suit constituted, as I have indicated, went on for some time. There was a decision in the Court below and an appeal by some of the parties in the course of which by consent remand order was passed. At the time when the consent order was passed Haridas Dutt was still in the category of defendants. Subsequently, however, after the consent order had been passed he was transferred to the category of plaintiffs at his own request and ultimately a con-sent decree was passed for rent at the old rate. At the time the suit was remanded by consent, Haridas did not appear and he was not a party to the remand order that was made by consent of the appearing appellants and the respondent. It is stated that he subsequently took an active part in the remand proceedings and that ultimately a decree was passed by consent for the rent at the old rate, that he was at that time a plaintiff in the suit and that therefore, the decree passed in that suit by consent which is before us should operate as res Judicata between the present defendants who were represented by Mr. Miller and the present plaintiff who was represented by Haridas. But the materials before us are not clear on the point and we very much doubt whether, in the circumstances as I have indicated, the decree in suit No. 49 of 1887 operates as res judicata between the present parties to the appeal. The decree passed 40 years ago may be of considerable evidentiary value as it was, we are told, acted on by the parties or rent was paid at that rate for a considerable number of years. But this is not the point. The point is whether the present appellants are debarred by reason of that decree from urging their right to abatement of rent. We think that they are not. The other decisions to which we were referred were clearly not inter partes and have no bearing on the question of res judicata.
5. The result, therefore, is that the appeal succeeds and we hold that it is open to the appellants to raise in this suit the question of abatement and that they are not precluded by any previous decisions either in suit No. 49 of 1887 or otherwise. The suit will accordingly be remanded to the first Court in order that that Court may decide as to the rate of rent payable by the present appellants in respect of their holding after measurement and that Court will finally dispose of the suit.
6. Costs of this appeal will abide the result in the first Court.
7. I agree.