1. We are invited in this Rule to set aside a decree made by the Court of appeal below in concurrence with the Court of first instance by which a suit for rent has been dismissed. The properties, in respect of which rent is claimed by the plaintiff, consist of one taluk and separate lands in another taluk. In respect of the former of these lands, the provisions of Section 78 of the Land Registration Act are applicable, while in respect of the latter those of Section 16 of the Bengal Tenancy Act are applicable. The superior landlords are the plaintiffs and the defendants Nos. 8 to 14, to whose predecessor Goluk Nath Banerjeo, the properties originally belonged. The plaintiff is entitled to a third share, the defendant. No. 8 to another third, and the defendants Nos. 9 to 14 to the remaining third share. It appears that upon the death of Goluk Nath Banerjee, he was succeeded by his three sons Tarini, the plaintiff, Durga Charan, the predecessor of defendant No. 8 and Rajani, the predecessor of defendants Nos. 9 to 14. Rajani died several years before this action was commenced and his representatives do not appear to have served notice of succession under the provisions of Section 15 of the Bengal Tenancy Act. The plaintiff now alleges that his co-sharers declined to join with him as co-plaintiffs in the suit, and he has accordingly brought this suit for recovery of the entire rent making his co-sharers parties defendants. The tenants defendants objected that the suit is not maintainable inasmuch as the defendants as well as the plaintiff have failed to comply with the provisions of Section 78 of the Land Registration Act and Section 15 of the Bengal Tenancy Act. In so far as the first of these objections is concerned, the Courts below have overruled it on the ground that the names of the landlords have been duly registered under the Land Registration Act. In so far, however, as the second objection is concerned, it is not disputed that the representatives of Rajani failed to comply with the requirements of Section 15 of the Bengal Tenancy Act. Under these circumstances, the Courts below have held that the suit is not maintainable, in respect of any portion of the entire rent because part of it is admittedly irrecoverable by reason of the provisions of Section 16 of the Bengal Tenancy Act, and the remainder representing the shares of the plaintiffs and the eight defendants is irrecoverable because the tenants, are liable to pay the entire rent jointly to the whole body of landlords. The question, therefore, which requires consideration is, whether the suit is barred either as to the whole or as to any part of the claim by reason of the provisions of Section 16 of the Bengal Tenancy Act? The question is one of some novelty; and apparently one of first impression. But after a consideration of the arguments, which have been addressed to us on both sides, we feel no doubt as to the mode in which the question ought to be answered.
2. Section 16 of the Bengal Tenancy Act provides that a person, becoming entitled to a permanent tenure by succession, shall not be entitled to recover by suit, distraint or other proceeding any rent payable to him as the holder of the tenure until the Collector has received the notice and fees and costs referred to in Section 15. Section 15 to which reference is made prescribes that when a succession to a permanent tenure takes place, the person succeeding shall give notice of the succession to the Collector in the prescribed form, and shall pay to the Collector the prescribed fee for the service of notice on the landlord and the landlord's fee prescribed by Section 12 together with the costs necessary for its transmission to the landlord, and the Collector shall cause the landlord's fee to be paid to and the notice to be served on the landlord in the prescribed manner. It is manifest from the language of Section 16 that by its very terms, it does not disqualify the present plaintiff from recovering by suit the rent payable to him as the holder of the tenure. He is admittedly not a person who has become entitled to the tenure by succession; it is manifest, therefore, that the suit is not open to objection on the ground that the plaintiff has failed to comply with the requirements of Section 16. The persons, however, who are disqualified from recovering rent payable to them as holders of the tenure, are defendants Nos. 9 to 14, the representatives of Rajani. It may be conceded that if they had sought to recover by suit the rent payable to them in respect of the tenure, their suit would have been liable to dismissal in view of the provisions of Section 16. But does it follow that by reason of this disqualification on the part of the representatives of Rajani, the plaintiff is not entitled to succeed in respect of the rent payable to him as one of the holders of the tenure? The learned Vakil who has appeared on behalf of the tenant has contended that in a contingency like this, it is incumbent on the landlord who is not in default, either to swerve a notice under Section 15 on behalf of his co-sharers or to compel them to serve such notice by means of a suit. The first of these suggestions is obviously untenable because Section 15, as also the prescribed form in which the notice has to be given, show conclusively that such notice has to be given by the person who by succession has obtained the-tenure. The second suggestion is, in on opinion, equally unfounded. If under Section 15, the person who has succ3eded to the tenure is alone competant to give the notic3 prescribed, it is difficult to se3 how, if he is unwilling, he can ha compelled to do so by means of a suit. On the other hand, it is fairly clear that Section 16 was not intended to defeat in its entirety a suit brought by one of several landlords, who 13 not in default, merely by reason of the failure of his co-sharer to comply with the requirements of Section 15. No doubt, if we hold that the plaintiff in such a suit is entitled to obtain a decree in respect of the entire rent payable jointly to himself and his co-sharer, the result would be, to render nugatory the provisions of Section 16, because the co-sharer who is disqualified under the provisions of that section from maintaining a suit himself would be able to realise the rent as the result of the suit brought by his co-sharer. To such objection, however, can be taken if we held that in a suit so framed, a decree should be made in, favour of the plaintiff in respect of the sharer of rent payable to the co-sharers who are not disqualified under Section 16, and if the other co-sharers do not comply with the requirements of Section 15 before the decree is made, the remainder of the claim should be dismissed. The result is the same as if the co-sharers who are disqualified under Section 16 had received payment of their dues, that is to say, by a fiction of law, the amount which would otherwise be recoverable by them may be taken to have been extinguished by reason of their failure to comply with the requirements of Section 15. In our opinion the view taken by the Courts below that the suit is not maintainable at all by reason of Section 15 cannot be supported. We may add that the view we take as to the effect of Section 16 of the Bengal Tenancy Act is analogous to that taken by this Court in the case of Nilmadhab Patra v. Ishan Chandra Sinha 25 C. 787 as to the effect of Section 78 of the Land Registration Act under analogous circumstances. But our attention was invited to the circumstance that in respect of the taluk to which the provisions of Sections 15 and 16 have no application, the representatives of Rajani may be entitled to claim rent, and it was argued that as the amount of rent payable in respect of the taluk cannot be separated from the rent payable in respect of the other lands, the whole claim ought to be dismissed. There is no foundation, however, for this contention. In so far as the plaintiff and the defendant No. 8 are concerned, neither Section 78 nor Section 15 stands in the way of a decree in their favour in respect of their two-thirds share of the rent. In so far as the other defendants are concerned, they are not debarred in respect of the land to which the provisions of Section 78 of the Land Registration Act apply, but they are debarred in respect of the land to which the provisions of Section 16 of the Bengal Tenancy Act are applicable, and as the rent payable in respect of the two classes of lands has not been apportioned, their claim must fail in its entirety. In so far, therefore, as the claim of the plaintiff and the defendant No. 8 is concerned, it is open to the plaintiff to obtain a decree if there is no valid defence on the merits to that part of the claim. This raises the question, whether the case should he remanded. We find from the judgment of the Court of first instance that six points were specified for decision. Of these the first and second grounds were overruled by that Court and the third which relates to the applicability of Section 16 was allowed to prevail. The fourth, fifth and sixth grounds, however, require consideration. Now it appears from the order-sheet that on the day when the case came on for trial the defendant asked for an adjournment to enable them to produce evidence. This application was refused. We think, therefore, the case should go back and the three points which have not yet been decided should be investigated after opportunity has been given to the defendants to produce evidence in support of their allegations.
3. There is only one other point which requires consideration. It has been argued on behalf of the tenants that it is not competent to this Court to interfere in the exercise of its revisional jurisdiction under Section 115 of the Code. In answer to this, reliance has been placed on behalf of the petitioner upon the cases of Birj Mohun Thakur v. Rai Uma Nath Chowdhry 20 C. 8; Jogodanund Singh v. Amrita Lal Sircar 22 C. 767 (F.B.); Mohunt Bhagwan Ramanuj Dass v. Khettermoni Dassi 1 C.W.N. 617; Brajabala Devi v. Gurudas Mundle 33 C. 487 : 3 C.L.J. 293, to show that it is competent to this Court to interfere in the exercise of its revisional jurisdiction. In our opinion, the cases relied upon are amply sufficient to show that this contention is well-founded. It is, therefore, needless to consider whether the law was not too broadly laid down in some of the other cases to which reference was made, especially the cases of Jugobundhu Pattuck v. Jadu Ghose Alkushi 15 C. 47 and C. Ross Alston v. Pitambar Das 25 A. 509. In any event, there can be no dispute that it is competent to this Court to interfere under Section 15 of the Charter Act, and we are clearly of opinion that the case is one in which we should exercise our powers under that section.
4. The result, therefore, is that this Rule is made absolute, the decrees of the Courts below are discharged, and the case is remanded to the Court of first instance to be tried in accordance with the directions contained in this judgment. The costs of this Rule will abide the result. We assess the hearing fee at one gold mohur.