B.B. Ghose, J.
1. This appeal arises out of a suit for rent with regard to the land in dispute for the year 1328 B.S. The Defendant No. 1, who is the tenant, contested the claim and pleaded that the suit was not maintainable on the ground that the plaintiff was only entitled to 1/3rd share and his brother's sons, who have not been joined, are owners of the remaining 2/3rd share. He also pleaded payment. Defendants Nos. 2 to 4 are mother's sister's sons of the plaintiff. The property in question originally belonged to one Kristo Chandra Chakravarty who had two daughters : Kali Tara, the mother of the plaintiff; and another daughter from whom the Defendants Nos. 2 to 4 were descended. The plaintiff had another brother who predeceased his mother. Plaintiff's mother died in the year 1328 and the plaintiff claims to be the 16-annas owner of the land in question by virtue of an arrangement between his mother and the Defendants Nos. 2 to 4 under which it is stated that his mother took the whole of this land in exchange of other lands given to Defendants Nos. 2 to 4, which arrangement was arrived at in order to avoid future dispute. Under that deed of partition this arrangement was agreed to between the plaintiff and his brother, who was then alive, on one side and the Defendants Nos. 2 to 4 on the other. It was alleged that after the death of his mother plaintiff became the sole reversioner and by virtue of the previous arrangement with Defendants Nos. 2 to 4 he is entitled to the whole of the land in question.
2. The Munsif gave the plaintiff a decree on the finding that he was entitled to the property and the brother's sons of the plaintiff were not necessary parties. He disbelieved the plea of payment by the defendant and decreed the suit without damages but allowed full costs. The Defendant No. 1 appealed against that judgment and the Subordinate Judge has set it aside on the ground that the suit was not maintainable by the plaintiff. The view of the Subordinate Judge was that the brother's sons of the plaintiff whose title was set up by the Defendant No. 1 did not inherit any share of the property. But the suit should fail all the same because the plaintiff was not the sole landlord. The view which the Subordinate Judge took was that the plaintiff and the pro forma Defendants Nos. 2 to 4 were entitled to the entire property and, therefore, the plaintiff was not entitled to maintain the suit for the entire rent. With regard to the question of partition the Subordinate Judge stated that that deed could not be interpreted in the absence of the heirs of the plaintiff's brother.
3. The plaintiff appeals to this Court and it is contended on his behalf that on the findings of the Subordinate Judge he is entitled to a decree for rent. The Subordinate Judge has found that the persons whose title was set up by the Defendant No. 1, that is, the nephews of plaintiff, had no title and as the persons who, according to the finding of the Subordinate Judge, are co-sharers with the plaintiff are made parties as defendants in the suit, the suit for rent by the plaintiff for the entire amount should be held proper and according to law. It seems to me that this contention is sustainable. If the plaintiff and the pro forma defendants are entitled to the whole of the rent according to the finding of the Subordinate Judge and the plaintiff claims the whole on the allegation of an arrangement with the pro forma defendants which the pro forma defendants do not contest, it does not lie in the mouth of the tenant to say that he would not pay the entire rent to the plaintiff. If, the plaintiff had sued for a share of the rent certainly the tenant might say that he was not bound to pay the rent in portions to different landlords. But as I have said that this is a suit for the entire rent making the other alleged co-sharers defendants in the suit those other persons who have been found to be co-sharers by the Subordinate Judge certainly cannot sue the tenant again for the rent of this period and, therefore, the tenant defendants had no reason to complain if the plaintiff got a decree for; the entire rent.
4. It has been contended on behalf of the respondents that the deed of partition mentioned by the plaintiff was really a surrender of the interest of Kali Tara the plaintiff's mother in favour of the then reversionars and, therefore, the plaintiff as well as his brother, got an absolute interest by such surrender; but this is a view of the case which has never been put forward before this and it need not be decided in the present proceedings whether the deed of partition was really a deed, of surrender of the life estate by the daughter of the last male owner, Kristo Chandra, or not. It is sufficient to say that on the findings of the Subordinate Judge that the plaintiff and the pro forma defendants were entitled to the whole of the property in question the plaintiff is entitled to maintain the suit as framed. The judgment and decree of the Subordinate Judge must, therefore, be set aside; but the Subordinate Judge has not decided the question whether the defendant had paid any rent to the plaintiff and it is, therefore, necessary that the appeal should be sent back to the Subordinate Judge for decision of this question, whether the plaintiff had received any portion of the rent claimed by him. The Subordinate Judge will dispose of the appeal finally after deciding that question. The plaintiff is entitled to the costs of this appeal. The costs of the lower appellate Court will abide the final result.
5. I agree.