BIBHUTI BHUSAN DAS Vs. BRAJO BALA DUTTA

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by learned Subordinate Judge, Asansol, confirming the judgment and decree passed by the learned Munsiff, Second Court, Asansol. What happened was this:

(2.) The property described in schedule 'kha' of the plaint is a tin shed. It bears a rental of Rs. 14 per month, situated in the municipal town of Ranigunj being holding No. 50. The property belonged to four brothers in ejmali. Of the four brothers, one Ramnath Bhose sold 1/4th (one -fourth) undivided share in the said property by a registered kobala dated August 15, 1956 to the present Plaintiff. The Defendant No. 1 was a tenant under those four brothers in respect of the property in question, at a monthly rental of Rs. 14 payable according to the Bengali calendar month. On purchasing 1/4th (one -fourth) undivided share in the property from Ramnath, the Plaintiff has acquired undivided 1/4th (one -fourth) share in the property of which the other co -sharers are the Defendants Nos. 2, 3 and 4. The notice of acquisition of 1/4th undivided share by the Plaintiff from Ramnath was given under a registered post to the Defendant No. 1, claiming 1/4th (one -fourth) share in the rent payable for the property to the Plaintiff. The pro forma Defendants, the co -sharers of the Plaintiff, inspite of the request made by the Plaintiff to join in the suit, did not join. So, the Plaintiff claimed his 1/4th share of rent for the property for the month of Bhadra, 1363 B.s. to Agrahayan, 1363 B.S. The Defendant No. 1 and the pro forma Defendant raised various contentions. Besides several other pleas in defence, one common plea was that the suit, as framed, was not maintainable. The learned Munsiff gave a decree for the Plaintiff's share of rent on the view that the Plaintiff was entitled to get his share of rent and to sue for his share of rent making his co -sharers parties Defendants under the authority of provisions of Ss. 37 and 109 of the Transfer of Property Act. The learned Subordinate Judge affirmed the judgment and decree of the learned Munsiff holding that Ss. 37 and 109 of the Transfer of Property Act clearly entitled the Plaintiff to sue for only his share of rent as claimed in presence of his co -sharers and he, therefore, affirmed the judgment and decree passed by the learned Munsift

(3.) Mr. Dutt, learned Advocate for the Defendants Appellants, that means co -sharer -landlords and the Defendant -tenant, submitted that what the Courts below held could not be supported and that the Courts below failed to consider that Ss. 37 and 109 of the Act would not govern the procedure for bringing a suit like this by a co -sharer landlord claiming only his share of rent as against the tenant making the other co -sharers parties pro forma Defendant. Mr. Dutt further submitted that the Plaintiff could have claimed the entire rent for the period in question for and on behalf of the entire body of co -sharer landlord in the presence of such co -sharers claiming a decree for the entire rent due as against the tenant. In support of his argument, he relied on several decisions. Firstly, he rested his submission pointedly drawing my attention to the observation of the Privy Council in Raja Pramada Nath Roy v/s. Raja Ramani Kanta Roy, (1907) 7 C.L.J. 139 where their Lordships enunciated the principle as to the procedure following which a co -sharer in regard to zemindary interest could bring a suit as against the patnidar for realisation of his share of patni rent. Their Lordships' observation is as follows: