Richard Garth, C.J.
1. This was a suit to enhance the rent of a tenure.
2. One of the answers made by the defendant was that the tenure could not be enhanced, because the plaintiffs had only an undivided share in it, and that another person, named Gurupershad, was entitled as a co-sharer, so that the plaintiffs could not, in a suit brought by them alone, without joining Gurupershad, enhance the rent of the tenure.
3. The only issue that appears to have been raised in the first Court was (to use the language of the Munsif), 'are the plaintiffs co-sharers, and can they enhance?'
4. Both Courts have found this question in the affirmative; and upon that finding have dismissed the suit.
5. We have now heard the case fully argued on appeal. It has been contended by the appellants that there was no legal ground for the conclusion at which the lower Courts have arrived; and, having examined the evidence, we are led to believe that the lower Court's judgment is founded upon some misapprehension both of law and fact.
6. In the first place it seems to have been assumed--and so far as we can see erroneously assumed--that the two Full Bench decisions of this Court Guni Mahomed v. Moran and Soorja Proshad Mytse v. Joynarain Hazra reported in I.L.R. 4 Cal. 96 and the case of Jogendro Chunder Ghose v. Nobin Chunder Chattopadhya in I.L.R. 8 Cal. 353 are applicable; to the present case.
7. In these cases it was an established fact that the tenant had originally held a tenure under several co-sharers at an entire rent, and that afterwards an arrangement was made by which the tenant paid a 'proportion of his rent severally to each of the co-sharers. It was held that under these circumstances, although each co-sharer could enforce from the tenant the payment of rent separately, he could neither sue for a kabuliat for such rent nor bring a suit to enhance it, because such suits would be inconsistent with the continuance of the original joint tenure.
8. Now let us see what the facts are in the present case.
9. Some fifty years ago, it appears that the defendant's father took from the Government a jote of some 5 bighas of land. This land formed part of an estate numbered 312, which was then in the hands of the Government, and the defendant's father gave the Government a kabuliat for the land at a rent of 7 rupees.
10. The defendant ac the trial denied this kabuliat, and said that her father had never held under it; but the lower Courts have both found that the kabuliat was genuine; and that her father did hold under it.
11. This kabuliat, so far as we can see, is the earliest evidence of the defendant's father's title to the property, and we find no ground for assuming that at the time when the kabuliat was given the defendant's father possessed any other estate or tenure in the land.
12. That being so, it would follow, in the absence of evidence to the contrary, that these 5 bighas of land, which have apparently been in the possession of the defendant and her father ever since, formed a separate holding, at first under the Government, and afterwards under the person or persons to whom the Government conveyed the estate of which the 5 bighas formed a part.
13. Then it also appears that the Government afterwards settled this estate, No. 312, with the plaintiffs' predeoessors-in-title and there would have been no reason to suppose that any third person was interested in the defendants' tenure, but for a measurement chitta which was put in evidence by the plaintiffs, and from which it would appear that another person, one Gurupershad, had in some way or other acquired an interest with the plaintiffs in the estate.
14. From this chitta the lower Courts appear to have drawn the inference, not only that at the present time the defendant is holding under the plaintiffs and Gurupershad jointly, but that at the time when the kabuliat was given, 50 years ago, the defendant's father was holding under some joint tenure, which has continued to exist up to the present time, and upon this assumption the lower Courts have held that the Full Bench cases, to which I have referred, are applicable here, and that the plaintiffs have no right to sue for an enhancement of the defendant's jumma.
15. Now we are unable to find any legal ground for the inference which the lower Courts have drawn. We can discover no evidence, nor any reason to suppose, that at the time when the kabuliat was given there was any joint tenure in existence, under which the defendant's father was holding; and if, (as we decided in the Full Bench cases, before mentioned) the giving of a separate kabuliat by a tenant to one landlord is inconsistent with the continuance of a joint tenancy by the same tenant under several landlords, the fact of this separate kabuliat having been given to the Government would rather tend to show that at that time the Government, and the Government alone, were the owners of the land included in the kabuliat.
16. It no doubt appears that the defendant's holding is larger now than five bighas; and it may be that either from the Government or from the plaintiff's predecessors in title, or by some other dealings with the property which have not yet come to light, Gurupershad or others may have obtained a share in the lands which the defendant now holds; but if this is so, it by no means follows that the defendant does not hold a share from the plaintiffs at a separate rent, or that such rent may not be enhanced in this suit.
17. Co-sharers in jimali properties may, and often do, make separate leases to the same or different tenants of their undivided shares, and, as at present advised, we can see no valid reason why the rent of such holding should not be enhanced.
18. It is true that in one case, to which we were referred, it would seem that a learned Judge of this Court had expressed an opinion that the enhancement clauses of the Rent Law did not apply to separate leases of undivided properties; but the opinion which he expressed appears to have been somewhat extrajudicial, and at present we are not aware of any authority which is opposed to enhancement in such cases.
19. We think, therefore, that the case must be remanded to the Munsiff's Court, to ascertain, in the first place, with due regard to the observations which we have made, whether the defendant now holds under the plaintiffs separately, or under a joint lease from the plaintiffs and others. In the latter case it might be advisable, if there is no objection to that course, that the plaintiff's co-sharers should be made parties to this suit.
20. If there should appear to be no objection to the suit proceeding, the Court will then have to deal with the question of enhancement.
21. The costs in this and the other Courts will abide the result.