1. These two appeals arise out of a suit for rent. It was alleged by the plaintiff that the lands of Schedule 1 appertained exclusively to hisyas Nos. 3, 11 and 6 in a revenue paying estate called Taraf Sambhuram, that hisyas Nos. 3 and 11 belonged to one Raj Kumar Roy, whose rights in hisya No. 3 were purchased at a revenue sale by the defendant No. 23 who again sold the same to the plaintiff. The plaintiff, as purchaser of Raj Kumar Roy's hisya No. 3, sued to recover his share of the rent against the defendant No. 1 making the other co-proprietors of the estate parties to the suit. In the alternative, he prayed that a decree for the entire rent might be passed on taking additional Court-fee from him. There was a further alternative claim for a certain share of the rent of the lands of Schedules 2, 3 and 4 which it is unnecesary to consider in these appeals.
2. The defence, inter alia, was that the lands do not belong to hisyas Nos. 3, 11 or 6 but belong to a difference hisya (No. 2) owned by defendants Nos. 3--8.
3. The Court of first instance held that the lands did not appertain to hisya No. 3 and there was no relationship of landlord and tenant between the plaintiff and the defendant No. 1 with respect to any land mentioned in the plaint and dismissed the suit.
3. On appeal, the lower Appellate Court held that the lands of Schedule 1 were held under the proprietors of Taraf Simbhuram and that there was relationship of landlord and tenant between the plaintiff and defendant No. 1, but gave a decree to the plaintiff for a share of the rent proportionate to his share in the entire estate. The defendant No. 1 has appealed to this Court in Second Appeal No. 2098 and the plaintiff has appealed in No. 2625.
4. It has bean contended on behalf of the defendant No 1, first, that a co-sharer cannot sue for his share of the rent separately unless the lands are divided among the ca sharers, secondly, that at any rate he cannot do so without apportionment of the rent and that there being no finding that plaintiff or his predecessor-in-title had separate collection of the rent in the share purchased by the plaintiff, he cannot maintain a suit for his share of the rent separately.
5. The objection as to there having been no separate collection in the share purchased by the plaintiff does not appear to have been raised in the written statement or in the issues. But the plaintiff himself states in his plaint that a portion of the rent is payable to him and the remaining portion to his co-sharers who are made pro forma defendants and there is no allegation that there was separate collection in respect of the share purchased by him. It is stated by the learned Pleader for the respondent that there is evidence on both sides on the point, but there is no finding on the point by either of the Courts below.
6. We are of opinion that the first contention raised on behalf of the appellant has no force. A co-sharer can certainly maintain a suit for his share of the rent separately if there is such an arrangement (and it is an exceedingly common arrangement) without a division of the lands among the co-sharers. The case of Raj Narain Mitter v. Ekadasi Bag 27 C. 479 : 4 C.W.N. 479 relied on by the appellants does not lay down that there must be a division of the lands before a co-sharer can maintain a separate suit for his share of the rent. In that particular case, there was a division of the land and the co-sharers ceased to be joint landlords and it was held that a co-sharer could separately sue for his share when he had asked for apportionment of the rent.
7. A sale, however, of a share in an estate, which has been let out to a tenant in its entirety, as pointed out in the Full Bench case of Ishwar Chunder Dutt v. Ram Krishna Das 5 C. 902 : 6 C.L.R. 421 does not of itself necessarily effect a severance of the tenure or an apportionment of the rent, but if the purchaser desires to effect a severance of the tenure or an apportionment of the rent, he must give the tenant due notice to that effect and then, if an amicable apportionment 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 co-sharers parties to the suit; and the authorities show that such an apportionment can be asked for and effected in the rent suit itself. But in the present case, the plaintiff did not pray for any apportionment.
8. In the absence of separate collection of rent, a co-sharer can, of course, maintain a suit for the entire rent due to all the co-sharers making them parties to the suit, and there is such a prayer in the plaint.
9. In Appeal No. 2625 the plaintiff appeals on the ground that his share of the rent ought not to have been determined with reference to his share in the entire estate, but ought to have been determined with reference to his share in the hisyas to which the land exclusively belonged.
10. If the plaintiff's case, that the lands appertained exclusively to the particular hisyas a share of which was purchased by him, is true, we think the rent to which he is entitled should be determined according to his share in such hisyas.
11. We think, therefore, that the lower Appellate Court should decide first whether the land of which rent is claimed appertained exclusively to the hisyas as alleged by the plaintiff, and second whether there was separate collection in Raj Kumar Roy's hisya No. 3 purchased by the plaintiff. If the second question is answered in the negative, the plaintiff cannot get a decree for rent for his share separately but he may be allowed a decree for the entire rent on payment of the additional Court-fee
12. The judgment and decree of the lower Appellate Court are accordingly set aside and the cases remanded to that Court to re-hear and dispose of the appeal in accordance with the observations made above. Costs to abide the result.