1. This Rule has been issued to show cause why the decree of the Subordinate Judge should not be set aside and that of the Munsif modified or such other or further orders passed as to this Court may seem fit.
2. The suit was one in which plaintiff claimed a decree for rent against the tenants, defendants Nos. 1 and 2, alleging that he had a 4 annas, and the defendants Nos. 3 and 4 an 8 annas and the defendant No. 5a 4 annas nishkar maliki right in certain properties; that under the said nishkar, the defendants Nos. 1 and 2 held plots Nos. 232, 1080 and 1013 and a portion of plots Nos. 281, and 282, at a yearly rental of Rs. 12-11-6 payable to the 16 annas maliks; that the rents for the years 1326 to 1328 and the, Assar kist of 1329 were due, of which the plaintiff's share was Rs. 13-7-6 being the amount of rent together with cesses and damages. The plaintiff alleged that inspite of his endeavour he had not been able to ascertain whether the rents due to his co-sharers had been paid or not as the latter would neither give him the information nor join with him as plaintiffs and he stated that the said co-sharers were at liberty to get themselves transferred to the category of plaintiffs if they so desired, in which case, he prayed that a decree for the entire rent might be passed.
3. It was stated in the plaint that the jote as it was originally held by the grandfather of the defendants Nos. 1 and 2 consisted of plots Nos. 232, 249, 1013, 1045, 1089, 403, 281, 282 and 1649, that portions of the said jote were gradually sliced off and passed on to different persons who were recognised as tenants by the different landlords in this way: that is to say, plots Nos. 249 and 1015 and apart of plots Nos. 281 and 282 went to Prokas Sat, another part of plots Nos. 281 and 282 to Binandi Sut, plot No. 1649 to Udai Sut, and so plots Nos. 232, 1089 and 1013 and a portion of plots Nos. 281 and 282 came to be held by the defendants Nos. 1 and 2.
4. The tenant-defendants did not contest the suit. The pro forma defendants, by two separate written statements, contested the plaintiff's right to get a decree for rent alleging in substance (and here I set out only so much of those statements as are at variance with the pleadings in the plaint) that the allegation as to enquiries having been made by the plaintiff and the said defendants having refused to give him information as to the rent due was totally false; and farther that the lands of the jote in suit were not in possession of the tenant defendants; that one Sarajuddi had been long in possession of plot No. 1081 having got himself recognised in the sherista of the defendants Nos. 3 and 4; that some lands of plots Nos. 281 and 282 had been sold with the knowledge and consent of the plaintiff to one Gopi Charan Sut and the plaintiff had recognised the transfer; that the remaining lands of the jote had been purchased by the plaintiff's officer Govinda Chandra Singh in the name of his wife; that the defendant No. 2 was the tenant in respect of plots Nos. 232 and 1013 and the remaining lands of plots Nos 281 and 282 and the rent, therefor, was due from him to the defendants Nos, 3 to 5, but not to the plaintiff; that the said defendant had abandoned the portion he was holding; that defendant No. 1 had no connection with the jote in question; and that the suit was a collusive and fraudulent one instituted with the object of getting a rent decree, under cover of which the remaining lands of the jote might be purchased by the plaintiff's officer Govinda Chandra Singh.
5. The learned Munsif gave the plaintiff a decree for the amount claimed against the defendants Nos. 1 and 2 but declared that it should be treated as a money decree. On appeal by the plaintiff the learned Subordinate Judge held that no appeal lay as under the provisions of Section 153, Clause (b) of the Bengal Tenancy Act, the Munsif a decree was final.
6. The plaintiff has obtained the present Rule and his contention is two-fold. It is contended that an appeal lay from the Munsif's decision as the case came within the proviso to the section; it is further contended that the suit in question was instituted in accordance with the provisions of Section 148 A of the Bengal Tenancy Act and, therefore, the Munsif had no jurisdiction to refuse to pass a rent-decree.
7. As to the first contention I am clearly of opinion that in the pleadings of the parties no question relating to title to land or to any interest in land as between parties having conflicting claims thereto was raised therein, far less was any such question decided in the decree passed by the learned Munsif. It was a simple decree for money due as rent as claimed with a declaration that the decree was to be treated as a money decree. The learned Subordinate Judge, therefore, was, in my opinion, right in holding that no appeal lay to him.
8. As to the second contention, the suit as framed was no doubt a suit, in accordance with the provisions of Section 148-A of the Tenancy Act as it is in force in Eastern Bengal and the cases of Nanda Lal v. Kala Chand 8 Ind. Cas. 50 : 15 C.W.N. 820.; Brohmonand Nath Deb Sircar v. Hem Chandra Mitra 23 Ind. Cas. 981 : 18 C.W.N. 1016. and Profulla Chandra Ghose v. Baburam Mondal 65 Ind. Cas. 1 : 34 C.L.J. 462. fully support the plaintiffs contention. The distinguishing features of the case of Rai Baikuntha Nath Sen Bahadur v. Ramapati Chatterjee 45 Ind. Cas. 767 : 27 C.L.J. 101. do not appear in the present suit. The opposite party, however, contends that as there was no allegation in the plaint that the plaintiff was entitled to sue for his share of the rent separately and inasmuch, as the allegation as to the plaintiff having made enquiries of his co-sharers and the refusal on their part to supply him with the information has been found to be false and also because the lands in suit did not represent an entire tenancy the suit failed to comply with the provisions of that section. Of these three objections the first two do not appeal to me. It is clear upon the written statements of the defendants Nos. 3, 4 and 5 that the collections were separate as they speak of the different sheristas of the plaintiff, the defendants Nos. 3 and 4 and the defendant No. 5 respectively; and I am not prepared to hold that mere omission to state specifically in the plaint that the plaintiff is entitled to sue for his share of the rent will take the suit out of the purview of the section, if, as a matter of fact, the contrary has not been proved in the case. Again, as to the allegations as to enquiry and refusal, even if they are false, it is not a matter of much consequence; for the same could be remedied by the co-sharer landlords disclosing the information in the course of the pleadings and the plaintiff taking advantage of it by amending his plaint if necessary. The third objection, however, seems tome fatal to the competency of the suit as a suit for rent. The learned Munsif had in the present case found the following facts: 8 Ind. Cas. 50 : 15 C.W.N. 820. ''Different parts of the jote as originally formed are now with different persons who have got their names substituted in the landlords' sherista and plaintiff's officer admitted that Binandi and Prokas Sut got their names registered with respect to some parts of the jote in the plaintiff's sherista 5 or 6 years ago; still these parts were included in the suit;' 23 Ind. Cas. 981 : 18 C.W.N. 1016. 'Evidence shows that of the part of the jote also that is alleged at present to stand in the ten ant-defend ants' name in the plaintiffs' sherista Dag No. 1089 is with one Seraj-ud-din who has got his name mutated in the sherista of the defendants Nos. 3 and 4 ; '65 Ind. Cas. 1 : 34 C.L.J. 462.' The plaintiff's officer Gobinda's wife has purchased the whole of the land of the jote that remained after the tenant defendants' sale to others who have got their names registered in the sherista of one co-sharer landlord or another.' Of these findings the one numbered 8 Ind. Cas. 50 : 15 C.W.N. 820. above is based on a misapprehension for the suit after the amendment of the plaint did not cover the lands of Binandi and Prokas Sut. The other findings referred to above in my judgment destroy the element of entirety of the holding and the co-sharer character of the pro forma defendants in the tenancy in suit, which alone can invest the decree with its character as a rent decree. The petitioner contends that the previous ex parte decree for rent would operate as res judicata as against the opposite party. In my judgment it would not. If upon no other ground, upon the mere fact that the opposite party were pro forma defendants and that there was no relief claimed against them in that suit, and no question as between the plaintiff and He said pro forma defendants was decided there in, they are not bound by the decision in that suit. It has also been found that no summonses were served upon the opposite party in that suit. The decision in the said suit, for the above reasons, had practically no effect as against them. The decree in that suit is evidence against the tenant-defendants, and very likely the present decree in so far as it is against them has been passed on the basis of that decree; for I do not find any proper findings in the judgment on which the decree against the defendants Nos. 1 and 2 can be supported. It has been argued that the very fact that the learned Munsif has passed a decree goes to show that he held that there was a tenancy; the answer to that is that the tenant defendants not having contested the suit and there having been the previous decree against them, the Munsif felt bound to pass a decree against them; but that does not mean that he found that there was any tenancy in respect of which the plaintiff and the defendants Nos. 2 to 5 were co-sharers as landlords. In fact, the facts, such as they have been found, establish the contrary. The learned Munsif, therefore, in my opinion was right in refusing to grant a rent-decree to the plaintiff.
9. The Rule accordingly is discharged with costs hearing fee two gold mohurs.