AKHIL CHANDRA DUTTA Vs. RAMANI RANJAN DUTTA

JUDGEMENT

(1.) These four appeals were heard together as had been the four suits from which they arise. The suits were for recovery of arrears of rent, brought by some cosharer landlords, the plaintiffs, on the allegation that they had an eight anna interest while the cosharer landlord, defendant Akhil, had the remaining eight anna share. The allegation also was that although the cosharer landlord Akhil had been asked to join the plaintiffs as a co-plaintiff, he declined to do so. The plaintiffs claim in all the four suits was resisted by the tenants-defendants whose defence was that the plaintiffs were not their landlords, that Akhil was the sixteen anna landlord and that they had paid all their dues to Akhil. Akhil supported the tenants in this defence of theirs. The Courts below decreed the plaintiff's suits, the lower appellate Court holding that the karsha within which the holdings in suits lay, belonged both to Mahim, the of the plaintiffs, and Akhil. Akhil has appealed to this Court.

(2.) On behalf of the appellant it was first of all contended that the Courts below ought not to have gone on to and decided the question of title as between the plaintiffs and Akhil in the simple rent suits that were instituted by the plaintiffs. This contention in the circumstances of the present case does not appear to me to be well founded. In some recent decisions of this Court among which I may mention the cases in Thinkari Bose V/s. Nagendra Prosad and Ananga Mohan Ray V/s. Khaje Habibulla it has been held that there is no rigid rule that in a rent suit the question of title should not be agitated. The learned advocate for the appellant placed considerable reliance on the decision in the case of Lodai Mollah V/s. Kally Dass Ray (1882) 8 Cal 238. But the true import of Lodai Mollah's case (1882) 8 Cal 238 has been discussed in a comparatively recent decision of this Court in Indra Narayan Manna V/s. Sarbasova Dasi . Lodai Mollah's case (1882) 8 Cal 238 not only lays down that in a suit for rent a third party set up by the tenants should not be dragged in to convert it into a title suit, but it also holds that the question with regard to the plaintiff's right cannot only be raised, but must be raised, where it is denied by the tenants defendants.

(3.) In the present case the plaintiffs claimed rent as cosharer landlords and they were bound, if they wanted to get a rent decree, to implead Akhil, the other cosharer landlord, under the provisions of Section 148-A, Ben. Ten. Act. Both the tenants-defendants and Akhil contested the plaintiffs claim to have any share in the rent. The plaintiffs and the defendant Akhil fully understood the position and the question whether the plaintiffs had any title to the property was fully fought out by them. In these circumstances it cannot, in my judgment, be reasonably contended that the decrees of the Court below are vitiated for the reason that the question of title as between the plaintiffs and the defendant landlord Akhil was gone into and decided in the trial.