1. These four appeals were heard together as had been the four suits from which they arise. The suits were for recovery of arrears of rent, brought by some cosharer landlords, the plaintiffs, on the allegation that they had an eight anna interest while the cosharer landlord, defendant Akhil, had the remaining eight anna share. The allegation also was that although the cosharer landlord Akhil had been asked to join the plaintiffs as a co-plaintiff, he declined to do so. The plaintiffs' claim in all the four suits was resisted by the tenants-defendants whose defence was that the plaintiffs were not their landlords, that Akhil was the sixteen anna landlord and that they had paid all their dues to Akhil. Akhil supported the tenants in this defence of theirs. The Courts below decreed the plaintiff's suits, the lower appellate Court holding that the karsha within which the holdings in suits lay, belonged both to Mahim, the of the plaintiffs, and Akhil. Akhil has appealed to this Court.
2. On behalf of the appellant it was first of all contended that the Courts below ought not to have gone on to and decided the question of title as between the plaintiffs and Akhil in the simple rent suits that were instituted by the plaintiffs. This contention in the circumstances of the present case does not appear to me to be well founded. In some recent decisions of this Court among which I may mention the cases in Thinkari Bose v. Nagendra Prosad : AIR1933Cal699 and Ananga Mohan Ray v. Khaje Habibulla : AIR1931Cal673 it has been held that there is no rigid rule that in a rent suit the question of title should not be agitated. The learned advocate for the appellant placed considerable reliance on the decision in the case ofLodai Mollah v. Kally Dass Ray (1882) 8 Cal 238. But the true import of Lodai Mollah's case (1882) 8 Cal 238 has been discussed in a comparatively recent decision of this Court in Indra Narayan Manna v. Sarbasova Dasi : AIR1925Cal743 . Lodai Mollah's case (1882) 8 Cal 238 not only lays down that in a suit for rent a third party set up by the tenants should not be dragged in to convert it into a title suit, but it also holds that the question with regard to the plaintiff's right cannot only be raised, but must be raised, where it is denied by the tenants defendants.
3. In the present case the plaintiffs claimed rent as cosharer landlords and they were bound, if they wanted to get a rent decree, to implead Akhil, the other cosharer landlord, under the provisions of Section 148-A, Ben. Ten. Act. Both the tenants-defendants and Akhil contested the plaintiffs' claim to have any share in the rent. The plaintiffs and the defendant Akhil fully understood the position and the question whether the plaintiffs had any title to the property was fully fought out by them. In these circumstances it cannot, in my judgment, be reasonably contended that the decrees of the Court below are vitiated for the reason that the question of title as between the plaintiffs and the defendant landlord Akhil was gone into and decided in the trial.
4. The next contention on behalf of the appellant before us, relates to the finding of the lower appellate Court to the effect that the Karsha in dispute belonged to both Mahim, the father of the plaintiffs and Akhil. This finding, that the Karsha belonged both to Mahim and Akhil, is unquestionably a finding of fact, and unless it can be shown that there was anything illegal in this finding we cannot possibly go behind it in second appeal. The learned advocate for the appellant assailed this finding, contending that from the facts found by the learned Subordinate Judge, namely that Akhil had treated the property as joint property of himself and Mahim, the inference that the property belonged to Mahim and Akhil could not be legally drawn, and in support of this contention a considerable amount of reliance was placed on an observation in Mr. Mayne's Book on Hindu Law to the effect that an intention to waive one's separate rights in a property must be established and will not be inferred from acts which may have been done merely from kindness or affection.
5. This observation was quoted with approval in the case of Rajani Kanta Deb v. Bashiram Mestari : AIR1929Cal636 . But 'affection' and 'kindness' do not appear to have had any place in the acts of Akhil while he treated the property as joint property of himself and of Mahim. It appears that the brothers Mahim and Akhil had each his separate loan business and each used to pay the doctor's and druggist's bills separately so far as his branch of the family was concerned. The facts therefore which the learned Subordinate Judge had before him were in my judgment sufficient in law as well as in fact, for the inference that the karsha belonged both to Mahim and Akhil, and the finding of the lower appellate Court on this point cannot, in my judgment, bo successfully assailed on any ground of law. Both the contentions urged before us on behalf of the appellant must therefore fail and the appeals must accordingly be dismissed with costs.
6. I agree.