1. It is sufficient for the purposes of this appeal to describe the position of the parties briefly, by stating that the defendants are the proprietors of a certain taluq for which they were paying rent to the plaintiff, the plaintiff also being a co-sharer with others in the estate of which the taluq formed a part. A batwara took place of the estate, and it would seem that this taluq ceased to be held exclusively by the plaintiff, and was divided between the plaintiff, Bimola, and others. On the strength of that batwara, the plaintiff has now sued the defendants for arrears of rent of the share stated to have been given to him under that batwara, and he claims rent at a higher rate in consequence of certain agreements said to have been entered into by the defendants with him when the taluq was his sole property.
2. The first objection taken in special appeal is, that the lower Appellate Court should not have held that the suit was bad, because Bimola and others, who are co-sharers, were not made parties to it. It appears to us that, under the terms of the Full Bench decision in the case of Iswar Chunder Dutt v. Ram Krishna Dass I.L.R. 5 Cal. 902; s.c. 6 C.L.R. 421 the order of the lower Appellate Court in this respect is correct. The judgment of the Full Bench declares, that if the purchaser of a share desires to effect a severance of the tenure and an apportionment of the rent, he must give the tenant due notice to that effect; and then, if an amicable apportionment of the rent cannot be made by arrangement between all the parties concerned, the purchaser may bring a suit against the tenant for the purpose of having the rent apportioned, making all the other co-sharers parties to the suit. The judgment further proceeds: 'No real injustice will be done to the tenant under such circumstances, because the possibility of the severance of the tenure by batwara, sale or otherwise is only one of those necessary incidents of the property which every tenant is, or must be presumed to have been, aware of when he took his lease.' Now, in this case, we think that the defendants, tenants, were entitled to insist upon Bimola and others, in fact all persons concerned in the taluq, being made parties to the suit, before the plaintiff's suit could be decreed. Mr. Bell, for the appellant, however, contends, that, inasmuch as the first Court decided this point in his favour, and the lower Appellate Court decided it adversely, the Court was bound to do justice in the case by adding Bimola and others as parties to the suit. It appears to us, that if the plaintiff has insisted upon his right to bring an action in the absence of his co-sharers, he must abide by the result; and that it is too late, at this stage of the case, for him to ask to be allowed an indulgence of which he did not avail himself when it was available.
3. A second point is raised, that, inasmuch as, in the present case, the plaintiff did not sue for enhancement of rent, but claimed a higher rent on an agreement said to have been entered into between the parties, the Court should not have proceeded to consider whether, upon the general grounds taken, the defendants were protected from enhancement. This ground, however arguable it might be, is not one which fairly arises out of the terms of the petition of appeal to us. The fourth ground, within which it is stated to fall, clearly refers to a different point altogether, and that is whether the lower Court was right in holding that the tenure was created before or subsequent to the Permanent Settlement, and not whether the Court was right in proceeding to consider the point at all. In this view of the case, we must dismiss this appeal with costs.