1. The facts of this case are as follows: The plaintiff and the defendant No. 2 were co-sharers in a certain estate. For some 5 or 7 years before suit they had been recovering rent separately from defendant No. 1 according to their respective shares. It appears that they partitioned the estate under a decree of the Civil Court and that certain lands in the holding of defendant No. 1 fell to the patti of the plaintiff and certain lands to the patti of the defendant. In each case some of the lands were in the possession of defendant No. 1 as tenant. The plaintiff now sues defendant No. 1 for arrears, of rent and assessment of rent on the allegation that the amount of rent due is in proportion to land in the patti of the plaintiff. In the Courts below this case has been treated as a rent suit, and it has been held by the Munsif and his holding has been affirmed by the lower appellate Court, that since the plaintiff is seeking for a part of the rent as a co-sharer the suit will not lie.
2. On this appeal coming on for hearing it is objected on behalf of the respondent that the appeal will not lie, this being a suit for rent and the amount sued for not exceeding one hundred rupees; and he relies herein on Section 153 of the Bengal Tenancy Act. If this view is correct it raises a question which has been decided in the case of Jogendra Nath Ghose v. Paban Chundra Ghose 8 C.W.N. 472 where it is held that in a suit by a co-sharer landlord Section 153 of the Bengal Tenancy Act does not apply. In view of the judgment delivered by the referring Court in the Full Bench case of Bhabatarini Dasi v. Ekabbar Mahta 5 C.L.J. 235; 2 M.L.T. 155 (F.B.) there may be a question as to the correctness of this decision. This, however, is a question which we need not go into in the present case, for when we come to look at the plaint it appears that the Courts below have really mistaken the nature of this suit. What the plaintiff sues for is not only rent; the ground of his suit is. butwara between himself and defendant No. 2. He sets out this partition and asks the Court to assess the fair rent which is properly payable to him on the basis of that butwara. He also asks that arrears of rent may be paid to him. He has joined defendant No. 2 obviously for the reason that he may be bound by the assessment of rent which he asks for, and the suit is, therefore, for assessment of rent independently of the prayer for recovery of rent from defendant No. 1. The result is that this case is not a suit instituted for recovery of rent under Section 153. Consequently that section does not apply and this appeal is not barred under that section.
3. Coming to the case itself as we have observed both Courts have failed to appreciate the real gist of the action. It is not a suit by a co-sharer landlord. It is a suit by one who seeks to establish his right as a separated landlord. It is for the Court in the first place to consider whether such separation has in fact taken place. If the Court comes to the conclusion that the separation has taken place and if so on what terms, it will be for it to assess the fair rent which is properly payable by the defendant No. 1, and having assessed that it will be for the Court to decide whether there are in fact arrears due from defendant No. 1 and then to give judgment accordingly.
4. The appeal is allowed and the case is remanded to the Court of first instance for decision in accordance with what we have said.
5. The costs will abide the result.
6. The judgment will govern S.A. No. 2504 of 1907.