1. In this case the superior interest in the holding with which we are concerned belonged originally, as regards 8 annas, to defendants 2 and 3 in the present suit and the other 8-annas belonged to defendants 4 and 5. The tenant was defendant 6. Defendants 4 and 5 granted a mourasi mukarrari settlements of their 8-annas to defendant 1 in the present suit and he, in 1920, by Suit No. 1453 of 1920, sued the tenant for rent, making defendants 2 and 3--the other 8-annas sharers--parties to the suit. He obtained a decree on 7th January 1924, and proceeded to sell in execution and purchased the property in execution on 22nd April 1924. The plaintiff in the present suit is a purchaser from the other 8-annas cosharers--defendants 2 and 3--and, after his purchase in 1925, he brought a suit (No. 937 of 1925) against the tenant, making defendant 1 a party, as being a cosharer landlord. We are informed and we may take it, that the suit was intended to be framed under Section 148-A, Ben. Ten. Act. The tenant did not defend the plaintiff's suit for rent. The claim in the case was for a period partly before the execution sale to defendant 1 in April 1924. Defendant 1--the appellant before us-- filed a written statement, setting up that he had brought the holding and was the tenant thereof after April 1924. He claimed that the plaintiff should not be allowed to recover rent after April 1924 against the original tenant, but could get rent only from himself. The Munsif in that rent suit held in favour of defendant 1's contention. He held that the decree for rent against the original tenant must be confined to the rent accruing due up to April 1924 and he gave a decree against defendant 1 for rent after that date.
2. In the present suit the plaintiff desires to have it established that defendant 1 is not entitled to this holding. He makes the case that, in the first suit, which was by defendant 1 against the tenant in 1920, all processes were suppressed so far as the plaintiff's predecessors-defendants 2 and 3 before us-were concerned. In making that case however he had a preliminary obstacle to overcome the Judgment in his own rent suit No. 937 of 1925 and the question which arises before us and upon which the Courts bellow have differed, is the question whether or not the decision in that rent suit |No. 937 is a bar to the plaintiff's contending that the proceedings in the suit of 1920 were invalid and the sale to defendant 1 of the holding inoperative and void. The trial Court took the view that the plaintiff could not overcome this plea in bar. The lower appellate Court has taken the view that the decision in the second suit does not debar the plaintiff from making the ease which he seeks to make. It has come to the conclusion that it was no part of the business of the Munsif, trying the rent suit, to decide whether or not defendant 1 had made out a good title to the holding. Its view is that the claim was a claim for rent against the original tenant, that the only matter in issue was whether the original tenant was liable to pay rent and, and if so how much and that the question, as between the plaintiff and the present defendant 1, was a question which was unnecessarily raised-the plaintiff in that suit claiming no relief at all against the present defendant 1. We have to consider what the correct view is upon that point.
3. The first thing we have to observe is that a suit, which is framed under Section 148-A, Ben. Ten. Act, is notionally at all events a suit for the entire rent. If the plaintiff does not know what rent has been paid to his cosharers, he, by impleading them, gives them a chance to raise any case they may have on that point. The intention is that the suit for the period covered is to deal with the whole of the rent so that the tenant is not subjected to a multiplicity of suits in respect of the same matter. When the plaintiff sued defendant 6 for rent he was met by a claim on the part of his cosharer that the cosharer himself had become tenant and the cosharer was, as it seems to me, entitled to object to any decree being passed in his presence against another for the whole or a part of the rent of the holding after his alleged purchase in April 1924. Had he permitted such a decree to be passed in his presence he would have great difficulty in maintaining, as against the plaintiff, that he himself was the tenant after April 1924. At its lowest he would have been allowing a cloud' to come over his title, whatever his title was to the holding. In these circumstances in the rent suit, this defendant objected to the plaintiff's getting any decree in his presence for rent after April 1924 against the original tenant. The plaintiff in these circumstances might have taken the attitude:
I do not wish to contest now and here the validity or effect of the execution sale to defendant 1, I will give up my claim against the original tenant for any rent after April 1921. I do not want in this suit to contest with defendant 4 the question whether defendant 6 is liable-after April 1924.
4. He might have done that. But it is quite certain that he did not do that. It is quite certain that he went on to claim that he was entitled in that suit to get rent for the whole period in suit against' defendant 6 before us. It is not quite certain whether the line he took was: ' if I cannot get rent beyond April 1924 from defendant 6, then I do not want 'any judgment for rent at all,'
or whether the line he took was
if I cannot rent after April 1924 from the original tenant when I want may rent from defendant 1.
5. On the whole I prefer to assume in his favour that he did not say the latter, and I propose to ignore the circumstance that the Munsif in this ease not only decided that the plaintiff could only get rent from the original tenant up to April 1924, but went on to give a decree against defendant 1 for the subsequent rent. Let us ignore that altogether. But the position was that defendant 1 was objecting and had an interest and right to object when a decree was being asked in that suit and in his presence against the original tenant on a footing inconsistent with the holding having passed to himself. In order to determine whether any rent after April 1924 should be decreed against the original tenant, the Munsif had to decide whether after April 1924, the original tenant remained a tenant or whether somebody else, so far as the plaintiff was concerned took his place. That being so, on examining into the facts which were put in issue, the Munsif found the sale certificate that defendant 1 had bought the holding. He also found that he had bought it in an execution case to which the plaintiff was a party in the place of his vendor, that the sale under which defendant 1 wanted to claim was a sale which had been procured by the plaintiff amongst others, and that it was impossible, in these circumstances, for the plaintiff to say that the original tenant had transferred a non-transferable occupancy holding in a way that did not bind the plaintiff.
6. In that way he decided first and quite competently, as I venture to think that the original tenant could not be charged with rent after April 1924, Whether ha was right in going further and giving a judgment against defendant 1 depends upon matters which are not plain on the scanty materials produced in the present case, It depends on whether or not he thrust that judgment upon the plaintiff or whether the plaintiff's attitude was that if he could not get subsequent rent from one he wanted to get a decree for it against the other. But in no view of this case does it seem to me reasonable to say that, in trying that question, the Munsif was trying something which he had no business to consider. It seems to me that, in order to determine in the presence of defendant 1, whether or not the plaintiff could get a judgment nominally for the whole of the rent against the original tenant, the Munsiff was deciding something that reasonably and properly arose before him. Whether it was absolutely necessary or not to decide it would depend apparently upon the attitude taken by the plaintiff. But in any case it is quite clear that the parties joined battle upon that point and the point was decided.
7. Whatever may be said about fraud in the first suit, there can be no question as regards the second suit. The plaintiff knew of defendant 1's purchase of the holding and all about the circumstances so far as they appeared from the record and it is expressly conceded that the plaintiff in this suit has made no case of fraud so far as the second case is concerned. In these circumstances it appears to me that this second appeal should succeed, that the judgment of the trial Court restored with costs in all the Courts. Hearing-fee assessed at three gold mohurs.
C.C. Ghose, J.
8. I agree.