1. This is an appeal by certain co-sharer defendants who were impleaded together with the tenants in a rent-suit. The plaintiffs' claim to have a two annas share in the landlord's interest. The appellants contend that the whole interest belonged to them. A claim was made against the tenants for a two Annas share of certain rent in arrear and an alternative claim was made against the present defendant-appellants that the plaintiffs' share of certain rent which had been received by the appellants from the tenants should be paid over to the plaintiffs A decree has been given both against the tenant and against the defendant appellants.
2. On this appeal, it has been contended that a serious question of title was raked as between the plaintiffs on the one hand and the appellants on the other and treating the cafe as a rent suit the trial Judge did not formally settle is sues that would determine tie question of title, but proceeded but the manner prescribed in Section 148 Bengal Tenancy Act. A further question has arisen in the course of the argument. The claim against the present appellants was hot a claim for rent at all. It was a claim for money had and received to the plaintiff's use. The question arises if such a claim as that may be joined with a claim for rent and can be tried properly by the procedure prescribed in Section 148 Bengal Tenancy Act.
3. Taking the' first point first, I am of opinion that it is quite plain that there is no rigid rule of law to the effect that in P rent suit properly so called and filed under the provisions of Section 148, a question of title may not be determined if it arises. In the present case, although formal issues were not framed, the judgment of the learned Judge is a extremely lucid and careful judgment and I am quite satisfied that so far as regards the claim for rent upon which claim the present appellants may be pro forma defendants there has been nothing in the way of miscarriage of justice. It was suggested as a possibility, though I am satisfied that it is a possibility entirely in the air, that if issues had been framed the appellants might have had a better chance of producing evidence I see no reason to think that the appellants had in fact any evidence that they did not adduce and they had ample opportunity in many stages of the case for taking that point if there was anything in it.
4. So far as this is a suit regarding the claim for a shire of rent, I see no substance in this appeal. The suit however as I have said was not merely a suit for rent but there was coupled with it a claim in the alternative, upon which the present appellants were not pro forma defendants but were contesting defendants, a claim that they should disgorge to the plaintiffs their share of the rent which had been but to these defendants in full. Now a question arises, when a claim, which is not for rent, is included in a suit which is tried under Section 148, whether there is any lack of jurisdiction on the part of the Trial Judge to deal with the claim'. An analogy his been suggested in argument of the case where the Judge has purported under the Small Cause Jurisdiction to try a case which apart from that jurisdiction he might have been quite competent to try. In my judgment there is this distinction between provisions as regards the Small Cause Courts and the provisions of Section 148 regarding rent suit that in the former case this Court has always regarded the matter as one of jurisdiction special jurisdiction which is given by the provisions of the Small Cause Courts Act In the case of Section 148 Bengal Tenancy Act I am satisfied that the view which has been consistently adopted by this Court, is that the proscribed procedure is not a special jurisdiction but a summary procedure, if I, can find that, as regards the cause of action for money told and received, there was any indication that the present appellants had been prejudiced by the fact that issues were riot formally framed in advance, it would, I think, become my duty not to allow the decree made against the present appellants to stand; but I think that this case is a case which is amply covered by section 09 Civil Procedure Code. I cannot find that in the present case any thing has been done that is not in conformity with the provisions of the Civil Procedure Code and except that the present appellants are able to she that issues were not formally framed. Having considered carefully the manner in which the case was tried by the trial Court, I am of opinion that no prejudice has been shown or can be presumed in the circumstances of the present case by reason of that fact.
5. For these reasons it appears to me that this appeal must be dismissed with costs. This judgment will govern the other two appeals (Second Appeals Nos. 164 and 65 of 1921).
6. Before we part with this case I desire to say something about Iswar Dalin v. Girindra Kumar Nag 48 Ind. Cas. 726 which was cited in argument by the learned Vakil for the respondent whose contention it may superficially appear to support. In that case the question considered was one of misjoinder. The joint which has been argued here seems to have arisen but was treated as one of jurisdiction, for I observe from the report that it was contended that the plaintiffs could not get a decree for recovery of their share of the rent against co-sharer landlords in a suit framed under Section 148 Bengal Tenancy Act. The judgment however proceeded upon the former question, for the learned Judges observed as follows 'It is contended that the prayer for this relief could not be joined to tie prayer for the recovery of rent against the principal defendant is but in our opinion Order I, Rule 3, Code of Civil Procedure provides for the joinder of such claims; and it is a well established practice to join such claims. The point to which my learned brother has addressed himself was not argued or considered and though possibly it might have been taken in that case, it by no means follows that it would have affected the result. It seems to me, therefore, that that case is distinguishable and is not an authority for the proposition advanced by the learned Vakil for the respondent I agree with the judgment delivered by my learned brother for the reasons stated by him.