1. In the suit out of which this appeal arises plaintiffs claim rent from the defendants Nos. 1 to 4 for their 8 1/2 annas-share of a Nim Howla which is subordinate in the remaining 7 1/2 annas-share to a Nim Osat taluk belonging to the defendant No. 5 and in the said 8 1/2 as share to a pattan miras ijara held by the plaintiffs as darpattan miras ijara. The defendants Nos. 1 to 4 contested the suit alleging that the darpattan miras ijara was fictitious and fraudulent and there was no relationship of landlord and tenant as between the plaintiffs and themselves. The defendant No. 5 also challenged the bona fide character of the darpattan miras ijara, denied that the plaintiffs acquired any rights under it, and averred that he, having purchased the pattan miras ijara in execution of a decree for arrears of rent thereof, he has become the landlord of the defendants Nos. 1 to 4 to the extent of 'the 18 annas share.
2. The suit was dismissed by the Court of first instance, but on appeal the learned Subordinate Judge decreed the same in favour of the plaintiffs.
3. The learned Subordinate Judge held agreeing with the trial Court that the plaintiffs darpattan miras ijara was a fraudulent and fictitious tenancy created by the holder of the pattan miras ijara when the latter foresaw that her properties could not be saved as a large amount of arrears of rent had accrued therefor and the document was a benami one created to serve its a protection as against such consequences. He held further that the plaintiffs were assignees from the landlords of the defendants Nos. 1 to 4 and there was no contract between the plaintiffs and the said defendants and the latter were not inducted on the land by the plaintiff and therefore no estoppel arose on that ground. He, however, further observed as follows: 'When Biseswar Ray Choudhuri (meaning the defendant No. 5) brought a rent suit against him (meaning the tenant defendants or their predecessor), he set up the present plaintiffs' title and also produced rent receipts purporting to have been granted by them. It may be that he entered into this false defence at the instigation of the plaintiffs, but he went much further and produced dakhilas in support of his plea. It is the liability to pay rent which establishes the relation of landlord and tenant, but in the case of this defendant actual payment of rent was made and acknowledged. I think by this conduct this defendant did attorn to the plaintiffs and it is no longer competent to him to deny this title.'
4. In my judgment this decision cannot be supported on any conceivable principle. It awards the plaintiffs a decree for rent after an adjudication held in the presence of and on contest with the defendant: No. 5 in which it has been found that the plaintiffs have no title; it ignores the presence of the defendant No. 5 in whose presence a decree for rent cannot be passed on the finding that the Court arrived at. It proceeds to make the defendants Nos. 1 to 4 liable on the erroneous supposition that mere payment of rent, no matter under what circumstances the same was done, amounts to attornment and establishes the relationship of landlord and tenant.
5. Learned vakil appearing for the respondents has urged that the present appeal does not lie in view of the provisions of Section 153 of the Bengal Tenancy Act. I am clearly of opinion that the decree in plaintiff 's favour has decided a question relating to title to land and to some interest in land as between the plaintiffs and the defendant No. 5 who have conflicting claims thereto and, therefore, this objection of the respondents must fail. In fact, the position is much stronger here than it was in the case of Mahommad Gauhar Ali v. Samiruddin Sheikh (1913) 18 C.W.N. 33 in which the tenant-defendant pleaded that; the lease granted by the alleged superior landlord in favour of the plaintiff therein was invalid, and the said superior landlord, though a party to the suit, did not contest it. The respondents further contend that in a simple suit for rent complicated questions of title should not have been gone into and their object in making the defendant No. 5 a party was not to get such questions decided, but only to frame the suit as one in conformity with the provisions of Section 148-A of the Bengal Tenancy Act, and in support of this contention reliance has been placed upon the case of Lodai Mollah v. Kally Dass Roy (1882) 8 Cal. 238. My only answer to this contention is that it was very unfortunate and I quite sympathise with the respondents; but when this conflicting claim of title was set up it was bound to be decided and has been so decided and it is too late now to repent. The historic judgment of Field, J., in the case referred to above is no authority for the proposition that when a co-sharer landlord has been brought on the record and a conflicting claim to title is set up it can be at all ignored.
6. In the case of Baney Madhub Ghose v. Thakur Doss Mandal 6 W.R. Act X, Rule 71, a Full Bench of this Court decided, the judgment being delivered by Sir Barnes Peacock, C.J., that: 'According to English law, if a man takes land from another as his tenant he is estopped from denying the title of that person. But if he takes land from one person and afterwards pays rent to another believing that other to be the representative at. the person from whom he took the land, he is not estopped, in a suit for rent subsequently becoming due, from proving that the person to whom he so paid rent was not the legal representative of the person from whom he took. For example, if a, man pays rent to another believing him to be the heir-at-law of his deceased landlord, and afterwards discovers that he is not the heir-at-law, or that the landlord left a Will, the tenant, in a suit for subsequent arrears of rent, would not be estopped from showing that he paid the former arrears under a mistake, and that the person to whom he so paid had no title. The admissions of a man's representative character by payment of rent to him is not conclusive, although it may amout to prima facie evidence. It is, like all prima facie evidence, liable to be rebutter), and the tenant is not estopped from rebutting it if he can. In a case, very similar to the one now before us, the case of Ranee Tiles Suree Koer v. Ranee Ashmeth Koer (1875) 24 W.R. 101, Romesh Chandra Hitter, J., observed as follows: 'One of the tenants we find also raised the same objection, and even if Ranee Ashmed Koer had not been added as a party to the suit, this question of title must have been tried at the instance of that defendant. But it has been said that the plaintiff has already recovered a decree for rent against the ancestor of that defendant for a previous year, and he is, therefore, estopped from denying the title of the plaintiff who has thus become his zamindar. This contention I do not think is correct. If the tenant had been installed in possession by the plaintiff, i.e., if his tenancy has been created by her, no doubt he would not have been competent to question his admitted landlord's title. But that is not the present case. There the tenant had been allowed to question the title of the alleged assignee of his admitted landlord, and I do not know of any principle of law which prevents him from doing so. The decree for the rent of the previous year is not conclusive upon this point, and therefore, cannot estop him.'
7. The cases of Durga Das Hazra v. Samash Akon (1900) 4 C.W.N. 606, and Ketu Das v. Surendra Nath Sing (1903) 7 C.W.N. 596, have been cited at the Bar, but in my opinion they are not in conflict with the principles laid down in the other cases above referred to. It is quite clear upon the pleadings and the facts found that the payments of rent by the defendants Nos. 1 to 4 to the plaintiffs were not made under circumstances which would establish a relationship as between the parties which even in the face of the finding as to want of plaintiff's title would entitle the plaintiffs to a decree. The plaintiff's title to the rent claimed having been disproved, her suit must fail, even if she had realized rent in previous year.
8. The appeal accordingly must be allowed and the decree of the learned Subordinate Judge reversed and that of the learned Munsif restored and the plaintiff's suit dismissed with costs in all the Courts.