1. This appeal arises out of a suit for assessment and recovery of rent. It appears that the mahal belongs to the plaintiff and many other cosharers one of whom is the Raja of Dighapatia. In 1884 the plaintiff's father brought a suit in respect of his share in this mahal from which he was dispossessed by the Raja and obtained a decree. Since then, the finding is, the plaintiff has never realized any rent in respect of his share in the mahal which was found to be annas five three eighth pies. In the Record-of-Rights the plaintiff was recorded as a cosharer with the remark that there was no realization of rent in respect of his share. This suit the plaintiff has now brought for ascertainment of the rent, the defendants are liable to pay to him. The defence is that the plaintiff has no right in the mahal, that the defendants were in adverse possession of the plaintiff's share in the mahal, if he had any, that the lands which are char lands did not originally form part of the mahal but were subsequently recovered from the Government by the Raja and other cosharers who settled the lands with the defendants. The trial Court gave a decree to the plaintiff on the finding that the plaintiff had the share claimed by him in the mahal and as the defendants are tenants of the mahal they cannot resist the-plaintiff's claim for rent nor can they set up adverse possession against him. The appellate Court has dismissed the plaintiff's suit on the ground that the plaintiff had failed to prove the relationship of landlord and tenant between him and the defendants. The learned Subordinate Judge says that there is no evidence that there was a contract for payment of rent between the plaintiff and the defendants. With regard to the establishment of the relationship of landlord and tenant between the parties by operation of law, the learned Subordinate Judge remarks that there is no decree of any competent Court. Then he goes on to observe that these lands are char lands and were not the subject-matter of the suit which the plaintiff's father had brought against the Raja and in which he recovered a decree in respect of his fractional share. In this view he holds that though the plaintiff has got his name registered under the Land Eegistration Act he is not entitled to recover rent from the defendants under Section 60, Ben. Ten. Act. The learned Subordinate Judge further holds that the other cosharers of the plaintiff were necessary parties to the suit.
2. With regard to the last point it may be observed that in a suit for assessment of rent, the other cosharers are not ordinarily necessary parties. It does not appear that any question was ever raised with regard to the extent of the plaintiff's share. He has proved a decree of 1884 which gave him the share he now elaime and there is no evidence, according to the judgments of both the Courts below, that that share was ever in dispute. As to the first point on which the learned Subordinate Judge has dismissed the plaintiff's suit, namely, that he has failed to prove the relationship of landlord and tenant between him and the defendants, it is enough to say that such a relationship does not always arise by contract or agreement. Such relationship may arise by mere occupation of agricultural land. The learned vakil for the respondent has fairly put the case of his clients before us and has asked us to hold that the plaintiff is not entitled to recover rent but damages for use and occupation. It is not necessary to go into the question as to when rent can be claimed in the shape of damages but the result being the same and the Record-of-Rights being in favour of the plaintiff with regard to the proprietary title we do not see why a suit for rent cannot be maintained. The plaintiff 's right to recover rent must be determined on the status of the defendants. If the defendants are tenants of the holding and do not profess to claim any higher title than that of a tenant they are liable to pay rent to the plaintiff for his share as to the other cosharers.
3. With regard to the point made by the learned Subordinate Judge that the char lands were not in existence at the time when plaintiff's father recovered a decree against the Raja of Dighapatia we are not in a position to find out the real state of things as the point was not made in the trial Court. The defendants in para. 15 of the written statement have given a story which does not seem to have been fairly considered by the lower Court. Their case is that when these lands were reformed the Government took possession of them and settled them with, the defendants. Thereupon the Raja brought a suit against the Government and recovered these lands on which the defendants took a fresh settlement from the Raja who is in possession of these lands through the defendants. This story has not been carefully examined by any of the Courts below. It must be noted that the defendants have not expressly in their written statement set up the right of a third party nor do they say that they have been paying, under a bona fide belief, rent in respect of the plaintiff's share to some one else. If it is found that the plaintiff has succeeded in establishing his title to the land in suit which is in the occupation of the defendants as tenants he is entitled to a decree though he might not have realized rent for the last 40 years. If on the other hand he fails to establish this point, the question has to be considered as to whether the defendants or any of the other cosharers of the plaintiff by adverse possession have acquired any title to the land in suit. It is accordingly necessary that the matter should be reconsidered by the lower appellate Court. The result is that this appeal is allowed, the decree of the lower appellate Court set aside and the case sent back to it for a re-hearing of the appeal according to law. Costs will abide the result.