1. The plaintiffs appellants as the owners of a 5/6th share of a miras tenure sued to recover rent of a houla (subordinate to the miras) held by the principal defendants, the owner of the remaining 1/6th share of the miras being made a pro forma defendant on the ground that she refused to join with the plaintiffs in the suit. The suit was based upon a kabulipat which described the land let out as 50 bighas by guess' and provided that the lessees should enjoy the land rent-free for two years and that thereafter they should pay rent at the rate of Rs. 2 per bigha fixed in perpetuity for as much land as was cleared and brought under cultivation. No period was fixed within which the land should be reclaimed, but it was provided that if the surrounding lands were all brought under cultivation the executants would be liable to pay rent for the entire area in their possession at the stipulated rate.
2. The area of the land comprised in the howla was found to be 83 bighas in the Record of Rights, and it was also found that all the surrounding lands with the exception of a small patch of land reserved as pasture land had been brought under cultivation.
3. The plaintiffs stated that they were unable to ascertain whether any rent was due to the pro forma defendant and claimed their share of the rent of the entire land. They also prayed that the pro forma defendant might be joined as plaintiff if she desired to do so and a decree might be passed for the entire rent if it was found that the rent due to her was left unpaid, on taking additional Court fee from the plaintiffs. The Court of first instance passed a decree in favour of the plaintiffs, but on appeal that decree was reversed by the District Judge. The plaintiffs have appealed to this Court.
4. The main ground upon which the learned District Judge dismissed the suit, viz., that under Section 45 of the Contract Act the plaintiffs alone could not maintain the suit upon the joint contract contained in the kabuliyat cannot be sustained. As pointed out in Shital Chandra Bairagi v. Manik Chandra Hazra 1 Ind. Cas. 254 : 9 C. L.J. 331 : 13 C.W.N. 509., although as a general Rule all co-contractees ought to be joined as plaintiffs, a suit by one would not be bad if the others were joined as defendants and if there was good reason for not joining them as plaintiffs, and that one of several joint contractees may sue to enforce his share of the obligation if the other co-contractees are joined as defendants. In the present case the remaining co-sharer, who, it is found, refused to join as plaintiff, was made a pro forma defendant to the suit. The learned Pleader for the respondent also did not attempt to support the judgment on that ground.
5. It cannot be disputed that the plaintiffs can maintain a suit under the general law to recover the entire rent of the tenure provided they make their co-sharer a party to the suit [See Pramada Nath Roy v. Ramani Kanta Roy 35 C. 331 : 12 C.W.N. 249 : 10 Bom. L. B. 66 : 35 I.A. 73 : 7 C. L.J. 139 : 18 M. L.J. 43 : 3 M.L.T. 151., but it is contended on behalf of the respondents that this is a suit for additional rent for additional area under the provisions of Section 52 of the Bengal Tenancy Act and that, therefore, the suit cannot be maintained unless all the landlords join as plaintiffs in bringing the suit. If the suit is one under Section 52 of the Bengal Tenancy Act the provisions of Section 188 of the Bengal Tenancy Act would apply, and in that case the suit cannot upon the authorities be maintained, by some of the co-sharer-landlords. [See Gopal Chunder Das v. Umesh Narain Chowahry 17 C. 695 : 8 Ind. Dec. (N.S.) 1004. (7) 18 Ind. Cas. 197 : 16 O.L.J. 427. and Sati Prasad Garga v. Radha Nath Maity (7).]
6. The question, therefore, is whether the suit is one under Section 52 of the Bengal Tenancy Act. Now, the land at the time it was let out was waste and jungly. It was apparently not measured and the area was stated to be 50 bighas 'by guess.' The kabuliyat as stated above provided that the tenants would pay rent on the entire area at the fixed rate of Rs. 2 per bigha, when the lands would be reclaimed or when the surrounding lands would be brought under cultivation. The rent claimed under that contract, therefore, is not additional rent for excess land within the meaning of Section 52 of the Bengal Tenancy Act but a claim for rent in accordance with the terms of the original letting. The present case is similar to that of Sam Chunder Chuckrabutty v. Giridhur Butt 19 C. 755 : 9 Ind. Dec. (N.S.) 945., where Pigot and Banerjee, J.J., held that such a suit is not for additional rent for excess land within the meaning of the Bengal Tenancy Act, and that there is no reason why he should not be entitled to claim separately the rent that is payable, not upon any fresh adjustment of the rent inconsistent with the continuance of the old tenancy, but upon an ascertainment of the rent payable in accordance with terms of the original letting.' The case is sought to be distinguished on the ground that the plaintiff in that case was in separate collection of his share of the rent. That fact, however, is immaterial where the suit is not one for additional rent for excess area under Section 52 of the Act, but is a suit brought by a co-sharer-landlord under the general law after making all the co-sharers parties to the suit.
7. The learned Pleader for the respondents relies strongly on the case of Darik Dhakai v. Aswini Kumar Nag 20 Ind. Cas. 659 : 18 C.W.N. 642., in which Coxe and Roy, JJ., held that a suit for additional rent on the basis of a kabuliyat executed by the tenant in favour of the entire body of landlords agreeing to pay additional rent for additional area, was not maintainable by a co-sharer-landlord although the other co-sharers are made parties to the suit. But that case is clearly distinguishable from the present. There the tenants had executed a kabuliyat agreeing to pay rent for 15 bighas of land, and there was a stipulation that the tenant would pay additional rent for additional land. The land on being measured was found to be 25 bighas and the suit was for the whole rent including the rent due on the additional area. That was, therefore, a suit for additional rent for excess area under Section 52 of the Bengal Tenancy Act and the decision in that case cannot apply to the present. The learned Judges pointed out that the existence of an agreement (kabuliyat) does not necessarily take the suit out of the Tenancy Act. It is not, however, the existence of the kabuliyat, but the fact that the whole area was by the terms of the kabuliyat to be assessed with rent at a fixed rate on the lands being reclaimed or in the event of the surrounding lands being brought under cultivation, shows that the suit is not one for additional rent for excess area. There is no question f in the present-case of any excess area or of adjustment of rent inconsistent with the terms of the original tenancy. The rate of rent was fixed for the whole area at the inception of the tenancy and the tenant agreed to pay the rent for the entire land on the happening of the contingency mentioned in the kabuliyat. The tenant was paying rent for lands which had previously been brought under cultivation, and under the terms of the original letting he was liable to pay rent for the entire area under the circumstances found in the case.
8. The suit, therefore, is maintainable by the plaintiffs upon the kabuliyat under the general law, and the provisions of Section 188 are not applicable to the suit. No other question appears to have been urged before the Court below.
9. The decree of the Court of Appeal below must, therefore, be set aside and that of the Court of first instance restored with costs in both Courts.