Norris and Macpherson, JJ.
1. This is a suit under the Bengal Tenancy Act to enhance the rent of the tenant defendant, and to obtain additional rent for land which he is said to hold in excess of the area for which rent has been previously paid by him.
2. The plaintiffs are the proprietors of an eight-annas share of the mehal to which the holding of the defendant appertains, and the defendants 2 and 3 are proprietors of the remaining eight annas.
3. The plaint sets out that the plaintiff's and the co-sharer defendants are in joint possession by making separate collections; that the tenant defendant is in possession of a temporary ryotty jote of 218 bighas 15 cottahs at a variable rent of Rs. 95-7, which jote is recorded in the name of his father in the sheristah of the plaintiffs and of their co-sharers; that the land which the defendant really holds amounts to 242 bighas 1 chattack; that they are entitled to rent for the excess area and to enhanced rent for the land in the holding, the grounds on which enhancement is claimed being all those specified in Section 30 of the Tenancy Act. They accordingly pray that the entire rent may be assessed at Rs. 348-4-5, and that a moiety of this may be decreed to them on account of their share.
4. The tenant defendant pleaded inter alia that the plaintiffs being only fractional shareholders could not alone bring this suit either for enhanced or additional rent; that although the rent was paid separately to the plaintiffs and to their co-sharers in proportion to their respective shares, there was no separate tenancy under each; that he was not in possession of the quantity of land alleged; that the rent was less than that stated; and that his jotes were kaimi and mokarari and had been admitted to be so by the co-sharer defendants.
5. It appears that before the new Bengal Tenancy Act came into operation the plaintiffs had brought a suit to enhance the defendant's rent. This was dismissed on account of the invalidity of the notice of enhancement, but it was proved in that suit that the defendant was in possession of 242 bighas of land. It is only necessary for the purpose of this appeal to allude to three issues which the Courts had to determine. These were-
1st.-Could the plaintiffs maintain this suit as regards the enhanced rent?
2nd.-Could they maintain it as regards the additional rent for the excess area?
3rd.-Was the decision in the previous case conclusive as to the extent of land in the defendant's possession?
6. The Munsif held that under Section 188 of the Tenancy Act the plaintiffs could not by themselves sue for enhanced rent, as in such a suit all the landlords must join, but that there was nothing to prevent their suing for the additional rent on account of the excess area. He further held that the question of the area of the land was res judicata by reason of the previous decision; and on these findings, and accepting the defendant's evidence as to the prevailing rate, he gave the plaintiffs a modified decree. The Subordinate Judge, on the appeal of both parties, reversed the Munsif's decision on the first of the issues referred to above, and, upholding it as regards the other two issues, remanded the case in order that the other questions which arose might be disposed of.
7. The defendant, who is the appellant before us, contends that the decision of the Subordinate Judge on all the three issues is wrong. We think the Munsif was right and the Subordinate Judge wrong in the construction of Section 188. That section is as follows: When two or more persons are joint landlords anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, or by an agent authorised to act on behalf of both or all of them.' Section 28 provides that the rent of an occupancy ryot, when paid in money, shall not be enhanced except as provided by the Act; and the following sections prescribe the mode of enhancement, the circumstances under which, and the extent to which, it may be made. As regards the mode, it may be by contract subject to certain stringent conditions, or by suit; and. Section 30, which relates to a suit, commences as follows: 'The landlord of a holding held at a money rent by an occupancy ryot may, subject to the provisions of this Act, institute a suit to enhance the rent on one or more of the following grounds, namely.' Section 188, is therefore, as one of the provisions of the Act, imported into Section 30, and the only question seems to be whether the plaintiffs and their co-sharers are joint landlords of the holding within the meaning of Section 188. It is clear, we think, that the suit must be to enhance the rent of the entire holding, and that the suit must be brought by all the joint landlords, the landlord being the person or persons immediately under whom a tenant holds.
8. The allegations in the plaint show pretty clearly that the plaintiffs are not the sole landlords of the holding in question. It forms part of an undivided estate, of which they are only fractional proprietors, and they are only entitled to receive a fraction of the entire rent payable. Whether they have joint or separate sheristas, the holding is recorded as one holding bearing one entire rent. This rent would be payable jointly to all the landlords (in this case the proprietors) hut for an arrangement by which they collected separately their respective shares. It has been held, however, and it is only necessary to cite as authority the Pull Bench case of Guni Mahomed v. Moran I.L.R. 4 Cal. 96, that such an arrangement does not give rise to a separate tenancy, and that the original tenancy under all the landlords still continues. The case has indeed proceeded throughout on the understanding that the plaintiffs and their co-sharers were joint landlords, the only question being whether Section 188 applied. In our opinion it does apply, and was intended to apply to a case like this. So far, therefore, as the enhancement is concerned, the suit will not lie at the instance of the plaintiffs alone.
9. We think also that the suit for additional rent on account of the excess land will not, as framed, lie. It is true that Section 52 differs from Section 30 in this, that it merely declares the liability of the tenant to pay additional rent, and the circumstances which the Court should take into consideration if a suit is brought to obtain it, and that it does not expressly convey any authority to the landlord to bring a suit or import the provisions of Section 188. But the same principle applies alike to a claim for enhanced rent and to a claim for additional rent. The land, which is said to be in excess of the area for which rent has been previously paid, has been held, rightly or wrongly, as part of the original holding.. There is here no allegation that it has been taken by trespass. If a decree is obtained, the excess land will be annexed to the land of the original holding, and the additional rent will be added to the original rent. There will be no new holding created. If, therefore, some of several joint landlords cannot enhance the rent of the original holding, they cannot, it seems to us, any the more add to that rent in any other way, and they cannot increase the area of the holding any more than they can reduce it. The right of some of several co-sharers to collect separately their share of the entire rent of an undivided holding is quite distinct. It rests on an arrangement between the co-sharers and the tenants as to the mode in which the entire rent shall be collected, but which preserves intact the original tenancy both as regards the area of the holding and the rent paid. We cannot, therefore, see the analogy, which both the Munsif and the Subordinate Judge find to exist, between a suit for rent and a suit for additional rent when the parties suing are some only of several co-sharers.
10. For the reasons stated we think the suit is not maintainable by the plaintiffs, and it is unnecessary, therefore, to determine the remaining point, viz. whether the question of area is res judicata, by reason of the former decision. We therefore decree the appeal, reverse the decision of the Subordinate Judge, and dismiss the suit with costs in all Courts.