1. This appeal arises out of a suit for khas possession of a holding which the plaintiff purchased at a sale held in execution of a decree for arrears of rent obtained by the landlords against the defendants Nos. 1 to 14.
2. It appears that the defendants Nos. 1 to 14 held an occupancy holding under the defondants Nos. 15, 16 and their co-sharers. The defendants Nos. 15 and 16 had an 8 annas share in the landlord's interest. They brought a suit for rent against the tenants in respect of their 8-annas share for the years 1314 to 1317 B.S., obtained a decree and in execution of that decree put up to sale only an 8-annas share of the holding, and it was purchased by the defendant No. 25 on the 30th July 1912. She obtained a certificate of sale on the 28th September 1912 and has been in possession of the 8-annas share since then.
3. Some of the landlords other than defendants NOS. 15 and 16 then brought a suit for the entire rent of the whole occupancy holding for the years 1316 to 1319 against the original tenants Nos. 1 to 14, making the defendants Nos. 15, 16 and other co-sharers parties to the suit. The suit was decreed ex parte on the 12th March 1913. In execution of the decree, the entire occupancy holding was put up to sale under Section 163 of the Bengal Tenancy Act and was purchased by the plaintiff on the 26th March 1915. The plaintiff not having obtained actual possession, brought the suit out of which this appeal arises, for recovery of possession on declaration of his title by purchase at the rent sale.
4. The Court of first instance held that the plaintiff by his purchase at the rent sale was entitled to a decree for khas possession and gave a decree accordingly. That decree was set aside by the lower Appellate Court.
5. The lower Appellate Court has held that the defendant No. 25 was not bound by the sale; because she was not made a party to the suit although she had purchased an 8-annas share of the holding before the institution of rent suit. But we think that the other landlords were not bound to recognise her (defendant No. 25) as their tenant, as the purchase made by her was merely of the right, title and interest of the tenants in an 8-annas share of the holding. On the other hand the defendant No. 25 was bound by the sale held on the 26th; March 1915 in execution of the decree for arrears of rent against the original tenants, her position being that of an unregistered transferee [see the case of Aigar Ali v. Asaboddin Kazi 9 C.W.N. 134 at p. 135].
6. It has been contended on behalf of the respondent that the defendant No, 25 was a necessary party; because the defendants Nos. 15 and 16, who are some of the co-sharer landlords, were bound to recognise her as a tenant. It is argued that if all the co sharers had brought a rent-suit and if the defendants Nos. 15 and 16 had been in the category of plaintiffs, the defendant No. 25 could not have been left out in the rent-suit.
7. But at the sale held at the instance of defendants Nos. 15 and 16, only the interest of the tenants in an 8-annas share passed to the purchaser. There could not be any sub division of the tenancy without the consent of all the landlords, having regard to the provisions of Section 88 of the Bengal Tenancy Act.
8. It is true that the defendants Nos. 15 and 16 as co-sharer landlords having a, separate realization of rent in respect of their shares, were entitled to realize their share of rent separately. But such an arrangement, expressed or implied, merely affects the right to sue separately and in no other respect modifies the terms of the holding and the right to bring the tenure, to sale for arrears of rent remains intact [see the case of Pramada Nath Roy v. Ramani Kant Roy 35 C. 331 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 35 I.A. 73 : 7 C.L.J. 139 : 18 M.L.J. 43 : 3 M. L.T.151 (P.C.)]. It may be said that in this view a purchaser of a share of a holding, at the instance of some of the co-sharer landlords, can be deprived of his right by the other co-sharer landlords bringing a suit for arrears of the entire rent on behalf of all the landlords. Bat on the other hand if the contention of the respondent is correct, it would be open, to one of the co-sharer landlords, who might have a very small share, to sue a tenant, sell a small share of the holding and by recognising the purchaser, deprive the entire body of landlords from putting the entire holding to sale for the entire, rent. We think that in the absence of any sub-division of the homing with the consent of all the landlords, the right of the entire body of landlords to put up the entire holding to sale was not affected by the purchase made by the defendant No. 25 at the sale held in execution of the decree obtained by the defendants Nos. 15 and 16.
9. The lower Appellate Court was of opinion that the plaint was not in proper form and that under Section 148A the landlords who brought the suit for rent ought to have proceeded with their share only of the rent. Section 148A, however, is only an enabling section. A co-sharer landlord is given the right to proceed with the suit for his share only of the rent where he is unable to ascertain whether any amount is due to the other co-sharer, A co-sharer landlord has a right to claim the whole rent on behalf of the entire body of landlords as laid down in the case of Pramada Nath Roy v. Ramani Kant Ray 35 C. 331 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 35 I.A. 73 : 7 C.L.J. 139 : 18 M.L.J. 43 : 3 M. L.T.151 (P.C.), and it is only in a case so framed that the decree has the effect of a rent; decree. This right is reaognised in Section 158-B, Sub-section 1, Clause (iii) of the Bengal Tenancy Act. We do not think, therefore, that there is any force in this objection.
10. It is contended by the learned Pleader for the respondent that the decree was bad inasmuch as it was not in favour of the landlords who were not the plaintiffs in the rent suit, but were made pro forma defendants to the suit. But although that is so, the decree declares the share of each of the co-sharer landlords and the rent due to each of them. It is to be observed that Section 188B, Sub-section 2, clearly lays' down that when one or more co-sharer landlords having obtained a decree in a suit framed under Sub-section (1) or under Section 148A applies or apply for the execution of the decree by the sale of the tenure or holding, the Court shall, before proceeding to sell the tenure or holding, give notice of the application to the other co-sharers: and it may also be pointed out that the proviso to Section 169 of the Bengal Tenancy Act, which deals with the question of disposal of proceeds of a sale held under Chapter XIV, lays down that where a tenure or holding has been sold in execution of a decree obtained by one or more of the co-sharer landlords in a suit framed under Section 148A or sub-Section 1 of Section 158-B, payment of the amount due under such decree shall, notwithstanding anything contained in Clause (b) be made to the decree-holder and to the other co-sharer landlords in proportion to the amount found to be due to each.
11. We do not think, therefore, that the sale was bad by reason of the form of the decree.
12. The learned Pleader for the respondent also contended that the claim included arrears a portion of which was sued for previously in the suit brought by defendants Nos. 15 and 16. It was pointed out that the suit brought by them was for recovery of arrears for 1314 to 1317 and that the suit for the entire rent brought by the other landlords was for the period 1316 to 1319, so that the arrears of 1316 to 1817 (the subject-matter of both the suits) were twice sued for. But no objection appears to have been raised in the rent suit to that portion of the claim. The defendant No. 25, no doubt, was not made a party to the suit, but the original tenant was there; the 8-annas share was left him, and the mere fast that something was claimed that was not properly due would not make the decree any the less a rent-decree [see the case of Jagun Proshad v. Posun Sahoo 8 C.W.N. 172l.
13. We may add that the question of fraud was raised in the first Court and was found against the defendants, and that point was not pressed in the lower Appellate Court.
14. For all these reasons, the decree of the lower Appellate Court is set aside and that of the Court of first instance restored with costs.