T.P. Mukherji, J.
1. This second appeal at the instance of the defendants is directed against the judgment and decree of reversal passed by a Subordinate Jude at Howrah in a suit for recovery of rent for the period Bhadra 1363 to Sravan 1366 B.S. The plaintiff's case was that they are the landlords to the extent of a one-third share in the property in suit and the defendants are the tenants under them and the pro forma defendants 2 to 10.
2. On behalf of the defendants, it was claimed that the plaintiffs have no interest in the property in view of the vesting of the same in the State of West Bengal under West Bengal Estates Acquisition Act. A further objection to the plaintiffs' claim that was urged before me was that the plaintiffs were not entitled to realise the rent in their one-third share as claimed in view of the fact that there was no contract with them to pay them one-third share of the rent, nor did the plaintiffs ever realise from the defendants rent in their alleged one-third share.
3. The rent is claimed at Rs. 7 per month and, according to the plaintiffs, they are entitled to Rs. 233.2/3 paise per month out of that from the defendants. The defendants challenged the plaintiffs' claim for separate realisation and the evidence in that regard, so far as the plaintiffs are concerned, comprised the oral testimony on behalf of the plaintiffs and a document, exhibit 2, which is an order passed by a subordinate Judge at Howrah in a suit for partition amongst the plaintiffs and their co-sharers. No counter-foils of rent receipts showing separate realisation of rents in the plaintiffs' one-third share could be produced in Court. Exhibit 2 the order, simply permitted the added defendants in the partition suit to realise rents and profits from the leased out properties in respect of their two-third share. Nothing on record indicates as to who were the added defendants in that partition suit, nor does it appear from the record if the property now in suit was included in the subject-matter of the partition suit. Exhibit 2 thus does not help the plaintiffs. The simple oral, evidence of the plaintiffs unaided by the counter-foils of rent receipts is difficult to accept, in view of the evidence on oath on behalf of the defendants to the effect that the plaintiffs never realised rent separately in their one-third share. It may be mentioned in this connection that the lower appellate court has not come to any finding in this regard.
4. The question is whether, although the plaintiffs might not have realised separately the rent due in their one-third share, they are entitled to get a decree in respect of the one-third share of rent due from the defendants, in view of the fact that the co-sharers of the plaintiffs have been added as pro forma defendants in the suit and they have raised no objection to the plaintiffs' claim.
5. Mr. Ray appearing on behalf of the appellants contended that unless there is a contract which permits the plaintiffs to realise separately the rent due in their one-third share, no decree can be passed in the suit as that would have the effect of allowing a unilateral splitting up of the contract. In support of this contention, he has referred to the cast of Radhabinode Mondal v. Naba Kishore Mondal 30 Cal WN 413: (AIR 1926 Cal 578). That was a case similar to the one we are dealing with. There the plaintiff and his brother were joint owners of one-third of an estate and the plaintiff sued the defendant for his one-sixth share of the rent. It was held that the plaintiff was not entitled to enforce his claim to the one-sixth share of the rent as against the tenants without their consent and it was further held that the plaintiff might sue for the enforcement of the entire contract with him and his brother by making his brother a party defendant, but he was not entitled to enforce a part of the contract between himself & his brother on the one hand & the tenants on the other. On these findings, that suit was dismissed. Here, in this case, the plaintiffs have prayed for realisation of rent due in their one-third share making the co-sharers pro forma defendants. In view of the decision above, it must be held that the present suit as framed is not maintainable, even though the co-sharers of the plaintiffs might have been impleaded as pro forma defendants in the suit, the underlying principle being that the contract for payment of rent is not liable to be split up at the will of a co-share-landlord.
6. The second contention of Mr. Ray raised the question of vesting under the West Bengal Estates Acquisition Act. The relevant provision of the Act is Section 6(1)(b) thereof according to which an intermediary is entitled to retain--
'Land comprised in or appertaining to buildings or structures owned by the intermediary or by any person, not being a tenant, holding under him by leave or licence.'
An explanation attached to this provision states that for purposes of this clause, 'tenant' shall not include a thika tenant as defined in the Calcutta Thika Tenancy Act 1949. So far as the present case is concerned, there is no dispute that the defendants satisfy the definition of thika tenants in the Thika Tenancy Act in respect of the land in suit.
7. Under Section 6(1)(b), land comprised in or appertaining to buildings or structures built either by the intermediary or by any person holding under the intermediary by leave or licence does not vest in the State and the intermediary is entitled to retain the same. The provision further adds that if the land is held by a tenant, the same would vest in the State. The words 'not being a tenant' in the context in which it is used in Sub-clause (b) above introduces difficulty in the construction of the same. If a tenant is in possession, there is no question of that possession being by leave or licence and, if the sub-clause is dealing with persons holding by leave or licence, there was no need to introduce a tenant therein. Whatever that be, a tenant in possession of the land comprised in or appertaining to buildings or structures built either by the intermediary or by the tenant is liable to vest in the State. Under the explanation, however, if the tenant be of the nature of a thika tenant as defined in the Thika Tenancy Act, there would not be any vesting, although the thika tenant does not hold the land by leave or licence.
8. The defendants in this case were inducted on the laud under a document of lease for a period of three years. According to the definition of the term 'thika tenant' in the Calcutta Thika Tenancy Act, a thika tenant holding under a lease for a period of not less than 12 years is exempt from the provisions of that Act. As, in this case, the defendants are in possession under a lease for less than 12 years, they would be thika tenants under that Act with the result that the land in their possession would be entitled to be retained by the landlords tinder Section 6(1)(b) of the Act. Regarding such lands, there is no question of submitting any return in Form B.
9. Thus, though the land concerned has not vested in the State of West Bengal, the plaintiffs are not entitled to get a decree in the suit, in view of the fact that they were not entitled to claim arrears of rent in respect of their one-third share only therein, thereby splitting up the contract between them and the pro forma defendants on the one hand and the principal defendants on the other.
10. In view of what has been stated above, the appeal must succeed.
11. The appeal is, accordingly, allowed, the judgment and decree appealed against are set aside and the decree of the trial court is restored and affirmed.
12. There will be no order for costs in thisappeal.