1. This is an appeal by the plaintiffs and arises out of a suit brought by them, for recovery of arrears of rent for the year 1324 to 1327 B.S. at the rate of Rs. 48 2-1. The facts shortly, stated are these: It appears that the jote for which the rent is sued for, originally stood in the name of Khetu-boddya who died many years ago, how long ago we do not know. The defendant No. 1 is the son of Aizaddy who is the son of Khetuboddya. The other defendants are also the other heirs of the original tenant except one. The defence of the defendant No. 1, who alone contested the suit, was that the suit was not maintainable under the provisions of Sections 15 and 16 of the Bengal Tenancy Act: and that the suit was bad for defect of parties, because Namuda, a daughter of the original tenant, was not a party. He also contended that the rent payable was not at the rate of Rs. 48-2-1 but was Rs. 46-2-7. Lastly the defendant claimed abatement of the rent.
2. The Court of first instance found on all the issues in favour of the plaintiffs. As regards absence of Namuda one of the daughters of the original tenant, the Court of the first instance found that she was not a necessary party and in the result gave a decree to the plaintiffs at the rate of rent claimed by them. On appeal by the defendant No. 1 the learned Subordinate Judge, it appears, agreed with the First Court as regards the points other than that of defect of parlies. But on the ground that Namuda was not a party to the suit, he dismissed it altogether. The learned Subordinate Judge however, does not deal with the findings of the learned Munsif oh this question. Apparently he accepted the findings of the Court of first instance. The learned Munsif held that Namuda was not in possession of the jote, although the contesting defendant asserted that she was one of the tenants in possession as an heiress of the original tenant. The learned Munsif further found that the defendants who have been sued for rent, were paying rent to the land lords and obtaining dakhilas for them selves and that Namuda was not one of them.
3. The plaintiffs have now preferred this appeal against the judgment and defcree of the Subordinate Judge dismissing their suit on the ground that Namuda was not a party and, therefore, the suit was not maintainable against the other defendants.
4. The learned Vakil for the appellant contended that the conflict of authorities pointed out by the learned Subordinate Judge does not arise here upon the findings of the learned Munsif. St was contended that the learned Munsif found not only that Namuda was not in possession, but also that all along the rent was being-paid by the defendants, who have been joined in this suit as tenants defendants and obtained dakhilas and that Namuda was not one of them. The learned, Vakil, therefore, contended that upon this finding it ought to have been held that the landlords had recognised the defendants who were paying rent to them and obtaining dakhilas for payment of such rent as the heirs of the original tenant. We think that this contention is right. On the death of a raiyat it is no doubt the duty of the landlord to recognise all the heirs of the deceased tenant as representing the whole body of the tenants; it cannot be said that it is not also the duty of the heirs after the death of a raiyat to appear before the landlord and get themselves recorded as tenants in the place of their deceased ancestor. It is not unusual in this country, that on the death of a Muhammadan raiyat only the sons who are in possession of the jote, seek for recognition from the landlord as the representatives of the deceased raiyat, in the jote when the daughters of the raiyat who have been married to different families, have left perhaps the village and do not care to possess their shares of the jote and make themselves liable for the rent thereof. In such a case' the landlord is entitled to record as his tenants those who take possession of the jote and apply to be recorded as representing the deceased raiyat when that is done, it is done at the instances both of the landlord and the heirs of the raiyat who take possession of the land and appear before the landlord for recognition as representatives of the deceased jotedars. And if the heirs who have been so recorded and who are in possession, go on paying rent 'as the only recorded raiyats, it does not be in their mouth afterwards to turn roulnd and set up the rights, as in this case, of a sister who has never been in possession and never so far as this record goes, cared to apply before the landlord for recognition as one of the heirs. We do not know for how long this state of things in the present case, has been going on. It appears to us that this plea raised by the defendant No. 1 was nothing but an attempt to evade payment of the rent which he was justly liable to pay for the jote which Was in. his possession. We think, therefore, the findings, in the present case, amount to this that on the death of Khetaboddya one does not know how t long ago, the defendants who have been sued for rent were recorded in the sherista of the landlord as representing the deceased raiyat. It is true that such a recognition by a landlord only of the heirs in possession does not in any way affect the rights of the absent heirs. But until such heir asserts her rights, we think that when with the consent of the heirs in possession the landlord records them as the raiyats in possession representing the jote, the raiyats who have paid rent after, such recognition, cannot after years of such payment turn round and set up the right of the absent heir of the deceased raiyat.
5. We think, therefore, that the judgment and the decree of the learned Munsif were correct and ought to be restored. This appeal is allowed and the judgment and the decree of the lower Appellate Court are set aside and those of the First Court are restored with costs in all the Courts.
6. I agree.