1. The suit out of which this appeal arises is based upon the following facts. There were five plots of land which were settled at a consolidated juma with the tenant-defendants by the pro forma defendants who claimed an exclusive title to the lands. The plaintiffs thereupon brought a suit against the pro forma defendants and the tenant-defendants claiming exclusive title to the land and for khas possession. The suit was decreed in the plaintiffs' favour in the first Court and their title to the lands was declared, but their claim for khas possession was refused. The pro forma defendants preferred an appeal against that decision; and in the Appellate Court the plaintiffs and the pro forma defendants came to a compromise under which the plaintiffs got three of the plots and the two remaining plots remained the property of the pro forma defendants. The tenant defendants were parties in the suit as well as in the appeal, but they were not parties to the compromise. Under the compromise the plaintiffs were to get Rs. 10 per year as rent, the entire rent being Rs. 15 for the five plots.
2. Thereafter the plaintiffs brought a suit against the tenants in which they claimed rent at Rs. 10 per year on account of the three plots in accordance with the compromise above referred to. That suit was dismissed as not maintainable on the objection of the tenants that the plaintiffs were not entitled to a portion of the rent and the tenancy could not be sub-divided without their consent.
3. The plaintiffs have brought the present suit for the entire rent of the jama making all the co-sharers parties with the prayer that out of the entire rent decreed they may be allowed to recover their share of the rent at the rate of Rs. 10 per year. The Courts below have held that the present suit is also not maintainable. So the plaintiffs have appealed to this Court.
4. It appears that the Courts below have not appreciated the scope and the frame of the present suit and were led away by considerations which did not really arise in the present suit. The learned Subordinate Judge thinks that the effect of a decree in this suit would be splitting up of the defendants' tenancy and this could not be done on the authority of the case of Ruheemuddy Akun v. Poorno Chunder Roy Chowdhry 22 W.R. 336 on which he relies. That case, apparently, has no bearing on the present question. There the lands were let out by four agreements being thus constituted into four different holdings. The plaintiffs brought five suits against the tenants, thus converting four holdings into five, and it was held that this they could not do. The principle upon which that decision was based is now well-settled, that a holding cannot be split up or sub-divided without the consent of the tenant and a tenant has a right to insist that his holding should be kept intact in the state in which it was first created. The real question in this case is whether the plaintiffs are entitled in the circumstances above set forth to maintain this action. That a co-sharer has a right to bring a suit for the entire rent by making his co-sharers parties to the suit is a question which cannot now be discussed being settled by several decisions of this Court which were accepted and approved by the Judicial Committee in the case of Pramada Nath Roy v. Ramani Kanta Roy 35 C. 331 : 12 C.W.N. 249 : 35 I.A. 73 : 7 C.L.J. 139 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 3 M.L.T. 151 (P.C.). This is a general right which is conferred upon a co-owner irrespective of the special provisions of the Bengal Tenancy Act. This is exactly what the plaintiffs have done in the present case. They have brought the suit as co-sharers with the pro forma defendants for the entire rent and prayed that their share of rent might be decreed to them.
5. This raises a further question whether the plaintiffs can be called co-sharers in the common sense of the words. The learned Vakil for the respondents has argued that a co-sharer is a person who has got an undivided share in the entire holding and a person who has got a divided share or the entire interest in a definite portion or area of a holding is not a person who is a co-sharer. No authority has been cited before us in support of that proposition. But there is an authority in support of the contrary view in Ishwar Chunder Dutt v. Ram Krishna Dass 5 C. 902 : 6 C.L.R. 421 : 3 Shome L.R. 132 : 2 Ind. Dec. (N.S.) 1182. In that case the Full Bench held that a sale of a share in a tenure does not of itself effect a severance of the tenure or an apportionment of rent, but if the purchaser of a share desires to have such an apportionment he is entitled to enforce it and in laying down this proposition the learned Judges held that there was no difference between a case when a tenure was severed by different portions of its area being sold to different persons from that where it is sold to different persons in undivided shares. This decision is an authority for the view that a person who has got an undivided share in the holding as well as a person who has become interested in a particular area of the holding is entitled to maintain a suit for apportionment of rent. This view is in consonance with common sense. So far as the tenants are concerned they are liable to pay rent for the entire holding to persons who have got the superior interest. In the present case, for instance, it is not denied that the tenants are liable to pay rent to the plaintiffs. As between co-sharers themselves there is no doubt a division of area and the rent. But so far as the tenants are concerned the holding is an undivided one and all the persons who are interested in the different areas comprising the holding are joint landlords in respect of the tenancy. We have been referred to several cases where it has been held that a co-sharer is not entitled to maintain a suit for his share of the rent without suing for apportionment. These cases have no bearing on the facts of the present case.
6. We are accordingly of opinion that the view taken by the Court below is indefensible and that the appellants are entitled to maintain the present suit. In the above view this appeal is allowed. The decrees of the Courts below are set aside and the case remitted to the Court of first instance for trial on the merits. The appellants are entitled to the costs of this appeal. The costs of the Courts below will be at the discretion of the Trial Court.