1. In this case there is no appearance on behalf of the respondent.
2. We are of opinion that the judgment of both the Courts below, refusing to give the plaintiff relief against the defendant No. 2, is erroneous. The ground alleged by the Courts below for dismissing the suit as against the defendant No. 2 was that the claim against him was of a different nature from that against the defendant No. 1, and that it was not clearly set out in the plaint.
3. The plaintiff was the purchaser of the property in suit from the defendant No. 2, and on coming into possession he brought this suit against the defendant No. 1 for arrears of rent due partly for a period before his incumbency and partly for a subsequent period. He sued both the tenant and his vendor, because the defendant No. 1, on demand for rent being made, had alleged that he had already paid rent in advance to the defendant No. 2, and the defendant No. 2 omitted to take any notice of the plaintiff's reference to him.
4. Upon trial the Courts below were satisfied that the defendant No. 1 had bona fide paid the arrears of rent claimed in advance to the plaintiff's vendor, and that he could not be held liable for that amount to the plaintiff. But as the suit was for rent, the Courts below were of opinion that as against the defendant No. 2 the claim as for damages could not be entertained.
5. We think that Section 28 of the Code of Civil Procedure authorises the Court to give relief in cases like the present. That section says that 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.' In this case relief was claimed against these two defendants alternatively in respect of the same matter, namely, a certain portion of the rent for 1281 Fasli. As it was not due by the actual tenant, but was found to have been received by the tenant's previous landlord, and to be due to the plaintiff, we think that the Courts below should give a decree for that amount. We set aside the decree of the lower Courts dismissing the suit as against the defendant No. 2, and send the case back for adjudication of the question at issue between him and the plaintiff.
6. The appellant is entitled to the costs of this appeal as against the defendant No. 2.