1. In this case the lower Courts dismissed the plaintiffs' claim, because they were of opinion that there had been a misjoinder of parties, and such a joinder of causes of action as would not be allowed under the law.
2. After going through the plaint and the written statement, and hearing the learned Pleaders engaged on behalf of the plaintiffs, and one of the defendants Raja Ramrunjun Chuckerbutty, who has alone appeared in this Court, we think that the grounds upon which the Courts below have dismissed the suit are erroneous. The plaintiff's in this suit seek for alternative relief,--viz., for possession of a 4-anna share of a patni taluk; or failing in this, for the recovery of the rent of that share from the defendants from Assar 1281 (1874), to the end of the year 1282 (1875). They allege that their ancestor, Thakoordass Mookerjee, was the owner of a 12-anna share of the zemindari under which the patni is held; that upon a partition between the plaintiffs' ancestor, Rakhaldass Mookerjee and the other heirs of Thakoordass, Rakhaldass became entitled to a 4-anna share of that zemindari; that the defendant No. 3, Ishanchunder Sen, was recorded as the patnidar; that the plaintiffs brought a suit for arrears of rent from Joisto 1280 (May 1873) to Joisto 1281 (May 1874) against Ishanchunder on account of their 4-anna share of the zemindari; that a decree having been obtained, the said 4-anna share of the patni was sold and purchased by the defendant No. 6, Lukhinarain Ghose, on the 4th Bysack 1282 (16th April 1875); that there was a previous decree for rent on account of this 4-anna share of the patni, that is to say, for rent up to Pous 1281 (December 1874); and that in execution of that decree, the aforesaid 4-anna share was again put up for sale, and was purchased by the plaintiffs for Rs. 100. The plaintiff's further allege that after their purchase, they could not get possession, the defendants Nos. 1, 2 and 5, Anauthnath Deb, Raja Ramrunjun and Taraprosonno Mookherjee, and the defendant No. 3 Ishanchunder, his son Dhonkristo, the defendant No. 4, and the defendant No. 6 Lukhinarain, throwing obstacles in the way of their taking possession of the share purchased by them. The plaintiff's also allege that not only they have not been allowed to take possession, but that these defendants, although in possession, have not paid the rent due on account of their 4-anna share. Upon these facts they pray that either possession be given to them over the 4-anna share, or a decree for rent for the period commencing from Assar 1281 (1874) to the end of that year be passed against all the defendants except the defendant No. 3, and that a similar decree for the rent of 1282 (1875) be passed against all the defendants. The suit was brought against all the six defendants mentioned above.
3. The defendant No. 1, Anauthnath, claims only a 4-anna share in the whole patni. The defendant No. 2, Raja Ramrunjun, besides claiming another 4-anna share in the patni, also sets up a right to the possession of the land of the patni under an alleged darpatni title. The defendant No. 5, Taraprosonno Mookerjee, claims the remaining 8-anna share in the patni. The other defendants disclaim any connection with the property.
4. The facts stated in the written statements go to show that this property had been originally held and owned by two brothers, Ashootosh Deb and Promothonath Deb, in the benami name of the defendant Ishanchunder. Anauthnath, the defendant No. 1, is one of the sons of Promothonath, his other son being Monmothonath, and he therefore claims only a 4-anna share. Taraprosonno alleges that he has purchased the rights of Ashootosh Deb, and therefore he claims an 8-anna share in the property. Raja Ramrunjun, as regards the patni right, claims to represent Monmothonath, the other son of Promothonath.
5. Upon these statements made in the plaint and written statements of the parties, they were allowed to adduce evidence in support of their respective allegations, and after the evidence was completed, the Subordinate Judge seems to have thought that the case in its present shape could not be tried, it being open to the objections mentioned above. The Subordinate Judge says: 'From the evidence, it appears that the plaintiffs have no cause of action for the share claimed as against all the defendants, excepting Raja Ramrunjun Chuckerbutty, or for rent due from Magh 1281 (1874) to Bhadro 1282 (1875) as against the defendant No. 5, Babu Taraprosonno Mookerjee.' Without deciding the case upon the merits, the Subordinate Judge, as already stated, dismissed the plaintiff's suit. The District Judge has also taken the same view of the matter.
6. Now, as regards the plaintiff's claim for possession, we fail to understand upon what ground the Subordinate Judge thinks that they have no cause of action for the share claimed as against any of the defendants other than Raja Ramrunjun. It is clear from the judgment of the Subordinate Judge that he does not proceed simply upon the statements in the plaint, because he says: 'These facts appear from the evidence.' Now, so far as the facts admitted and found go, it appears that the plaintiffs claimed to recover possession of the 4-anna share of the patni in dispute in the joint possession of the defendants Anauthnath, Raja Ramrunjun, and Taraprosonno, and that the other defendants are not in possession at all of the property. That being so, it may be that the plaintiffs have no cause of action as regards the claim for possession against the defendants other than those mentioned above. But that would be no ground for dismissing the plaintiffs' suit in toto. Then, further on, the Subordinate Judge says: 'Again, the suit is bad on account of the plaintiffs' claims for the rents of 1281 and 1282 (1874-75) being joined in one suit. They cannot show that they have any cause of action for the rent of 1281 as against Baboo Taraprosonno Mookerjee. He had no concern with the taluk for which rent has been claimed for 1281. He may be liable for the rent due on account of a portion of the next year. Therefore, the plaintiffs' claim for the rent of the year 1281 lies against some of the defendants, and not against Baboo Taraprosonno, and their claim for the rent due on account of a portion of the year 1282, from Assin to Choitro, lies against Baboo Taraprosonno and others. I am of opinion that such two claims cannot be joined in one suit. See Section 45, Act X of 1877. And then the Subordinate Judge quotes certain decisions of this Court in support of this view, which decisions, it may be observed here, were passed with reference to the Procedure Code of 1859. This case is admittedly governed by the Procedure Code of 1877.
7. Now, is the fact of one portion of the claim for rent being directed against some of the defendants, and the other portion against others, in any way a bar to the maintenance of this suit under the provisions of the present Procedure Code? The Subordinate Judge thinks that Section 45 stands in the way of the plaintiffs in framing their suit in the way they have done. We think that in this respect he has overlooked the provisions of the other parts of the Code, and that he should have decided this question not with reference to Section 45 alone, but with reference to the other sections of the Code which bear upon the same subject. Section 28 says: 'All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative in respect of the same matter, and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment.' Now, as regards the claim for possession, as it has been already observed, it is directed against the persons in possession of the property, and if some of the defendants are found not to be in possession, that would be no ground for dismissing the suit. In respect of the claim for rent, all that has been said in that part of the Subordinate Judge's judgment, which has been cited above, is that a portion of the claim is not sustainable against one of the defendants, viz., Taraprosonno. That is no ground for dismissing the suit. The section quoted above says that judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities. It is, therefore, quite clear, that although the defendant Taraprosonno might not be liable for the rent of 1281 (1874), that is not a valid ground to hold that he could not be sued in one suit along with the other defendants who might be liable for the rent of that year. Therefore, it appears to us that the frame of the present suit is entirely in accordance with the provisions of the Procedure Code. Even if it were not so, we think that having regard to the provisions of Sections 81 and 45, the Courts below should not have dismissed the suit, but should have separated the distinct causes of action, if there were many, and should have tried them separately. Section 31 says: 'No suit shall be defeated by reason of the misjoinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.' This is a clear provision that a suit is not liable to be defeated merely by reason of the misjoinder of parties. No doubt the next paragraph of the section goes to show, that 'nothing in this section shall be deemed to enable plaintiff's to join in respect of distinct causes of action'; but reading this provision with Section 45, it is evident that when distinct causes of action are improperly joined, the Court, instead of dismissing the suit, should proceed to separate them and try them separately. But as we have already observed, in this case there was no misjoinder of parties, and there was no improper joinder of distinct causes of action, the frame of the suit was entirely in accordance with the provisions of Section 28 of the Procedure Code.
8. We, therefore, set aside the decrees of the Courts below, and remand the case for trial upon the merits, to the Court of first instance. Costs will abide the result.