1. The facts of the case out of which this appeal has arisen are these. This suit was tried along with two other suits. The suit is one for rent brought by the landlord against six persons. These persons are the heirs of one Broja Mohan Bera, who is now dead and with whom the original settlement was made. The case of the plaintiff was that the rent of the plaint land was Rs. 103-8-2.
2. The case of the defendants was that the rent was Rs. 54-8-6 and that they were entitled to a remission of some Rs. 6-6-8 for Mamulchar for some of the plaint lands and that the rent of remaining plaint: lands was Rs. 38-8-5. They further claimed that they were entitled to an abatement of rent as the area was less than had been stated in the plaint.
3. The first Court allowed the claim of the defendants with regard to an abatement for decrease in area; it did not allow the claim of Mamulchar, and gave the landlord a modified decree. Both parties appealed to the District Court; the plaintiff on the ground that the defendants were not entitled to any reduction of rent for decrease in area, and the defendants on the ground that they were entitled to Mamulchar.
4. During the pendency of that appeal the respondent No. 6 died and his heirs were not substituted in his place. The appeal so far as he and his heirs were concerned, therefore, abated. The District Judge then held that the appeal was in the circumstances incompetent against the other respondents in the absence of respondent No. 6 on the ground that the respondents being all heirs of Broja Mohan who was the original tenant, the liability was joint and not joint and several. He, however decided the other points that had been urged in the appeal, in case, as he said, it might be held that he was wrong on the first point, He held that the defendants were not entitled to any reduction in the amount of rent for any decrease in the area and that the plaintiff was entitled to a decree at the rate claimed in the plaint. He further held that the defendants were not entitled to any reduction of rent on account of Mamulchar; he, therefore, dismissed the appeal and the cross-appeal. The plaintiff has appealed to this Court and has contended that in virtue of the decision of the Full Bench in Reference No. 1 of 1925 in Appeal from Appellate Decree No. 586 of 1923 [Kailash Chandra Mitra v. Brojendra Kumar Chakravarty 90 Ind. Cas. 211 : 29 C.W.N. 1000 : 42 C.L.J. 232 : A.I.R. 1925 Cal. 1056] the learned District Judge was in error in holding that the appeal must be dismissed as against the remaining respondents.
5. The respondents have raised a preliminary objection that this appeal is also incompetent.
6. It would appear that 'since this appeal was filed the respondent No. 3 has died. Admittedly his heirs have not been substituted in his place, and so far as he is concerned the appeal has abated. The' respondent now argues that as the liability is a joint one the appeal must fail for his absence. On this point the appellant contends that on the strength of the decision of the Full Bench to which I have already referred the liability is a several one. The respondent puts his point in this way. The respondent obtained an abatement of rent; that only the whole body of tenants could apply for an abatement of rent, and hence the appeal cannot be decreed against some of the tenants and dismissed against the others. I do not think that there is any substance in this contention. If one of the tenants can be sued for the rent, it is quite clear that he could raise alone, the plea that he was entitled to reduction of rent for decrease in area. No doubt if the appeal is dismissed as against some of the appellants and decreed against the others, the position may arise that the tenants will pay rent at different rates. That cannot be helped. In view of the Full Bench decision referred to I think that it is quite clear that this appeal can proceed in the absence of the respondent who is dead and that the appeal is not incompetent.
7. With regard to the appeal itself it seems to me that it is concluded by the decision of the Full Bench. The learned Counsel for the respondent frankly admits that he is not in a position to support the decree on the grounds that have been decided against him and to contest the finding of the lower Appellate Court on the grounds that have been decided against him. The result is that the appeal must be allowed and the suit of the plaintiff decreed with costs. Appellant is entitled to his costs in all the Courts.
8. I agree.