TIN KARI BOSE Vs. NOGENDRA PROSAD BASU

JUDGEMENT

(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.