1. This is an appeal in a suit for rent and the only question involved is whether the plaintiff is entitled to recover the whole of the rent for the holding or only the half of the rent.
2. The plaintiff is the heir of one Gopi, who shared with his two brothers, Ramjoy and Baidya, the original landlords' interest. Ramjoy and Baidya both died before Gopi and as neither of them left any children and the widows of both died before Gopi, Gopi would, in the ordinary course, be the heir of both. But the defence was that one Dina Nath was a foster son of Ramjoy and as such entitled to a half share of the property. The learned Subordinate Judge gave effect to this contention and, therefore, decreed the suit for rent of only half the holding.
3. A preliminary objection is taken to the hearing of this appeal under Section 153 of the Bengal Tenancy Act, the amount of rent involved being less than Rs. 100.
4. The appellant supports his light of appeal by referring to the case of Srimutty Poresh Moni Dassya v. Nobo Kishore Lahiri 8 C.W.N. 193. where, as here, the defence was that the plaintiff was entitled only to a smaller share than was claimed. It is attempted to distinguish that case by the fact that the rent for the whole holding was in dispute. That no doubt is true but it is not a sufficient reason for distinguishing the case, for the decision was not based on the fact that there was a dispute as to the rent. The reason for overruling the objection was contained in this sentence of the learned Judges: The question raised and determined was not merely the amount of rent payable to the co-sharer but whether he had a title to recover the 8-annas share as he alleged. This comes under the exception mentioned in the section and the objection, therefore, fails.' That is, the desision was based not on the dispute as to the total rent but on the dispute as to plaintiff's title to recover a particular share, It is argued that the language may refer to the other exception contained in Section 153, namely, the decision relating to title to land. That cannot be so, for there was no decision as between parties having conflicting claims thereto, the record show ing that the other co-sharers were not parties to the suit. The view taken by the learned Judges evidently was that if there was a dispute as to the share of the plaintiff there was a dispute as to the amount of rent annually payable by the defendant, and there being a decision on that point, an appeal lay. That is, if I may say so, a perfectly logical line of reasoning and though a contrary view was taken in the case of Prasanna Kumar Banerjee v. Srinath Dass 15 C. 231 ; 7 Ind. Dec. (N.S.) 738 that was overruled by the Full Bench in the case of Narain Mahton v. Manofi Pattuk 37 C. 489 (F.B.): 8 Ind. Dec (N.S.) 865.
5. My attention was called to a decision of Geidt, J., in an unreported case (Appeals from Appellate Decrees NOS. 699 and 1100 of 1903) in which the learned Judge drew a distinction between a decision as to the amount of rent receivable by the plaintiff an 1 a decision as to the amount payable by the defendants. That case was decided before the case of Srimutty Poresh Moni Dassya v. Nobo Kishore Lahiri 8 C.W.N. 193 and the learned Judge is evidently referring to the total rent payable by the defendants, a point which had also been in dispute in the 1st Court, but not in the lower Appellate Court. In any case whatever my own view, I should be bound by the decision in Srimutty Poresh Moni Dassya v. Nobo Kishore Lahiri 8 C.W.N. 193. The preliminary objection must, therefore, be overruled.
6. As regards the merits the learned Subordinate Judge holds that Dina Nath was entitled to an 8-annas share as foster son and heir of Ramjoy and, therefore, the plaintiff was entitled only to an 8-annas share.
7. As a foster-child Dina Nath would have no rights and respondent's Pleader says he does not base his case on Dina Nath being the heir, but on the fact that he realised rent for some time. He suggests he may have realised rent for more than 12 years. This brings in a plea of adverse possession by Dina Nath against plaintiff which was not raised in the issues, and not investigated by the first Court and would rightly not be investigated in the absence of Dina Nath. It cannot be entertained now. Then the learned Pleader argues that the Subordinate Judge finds that Dina Nath was the adopted son of Ramjoy. In fact be does not definitely find so, nop could he well do so as adoption doee not appear to have been asserted, nor was there any issue as to it. Finally it is argued that Dina Nath's relation as landlord was created by acceptance of rent. Stripped of verbiage the argument comes to this, that if one man accepts rent due to another that fact constitutes him the landlord of the tenant in place of the other. The argument has only to be stated to be rejected.
8. The appeal must, therefore, be allowed, the decree of the learned Subordinate Judge set aside and that of the Munsif restored with costs in all Courts.