KAMALESH RAY Vs. DWARIKA NATH KOTAL

JUDGEMENT

(1.) THESE appeals arise out of suits brought by the plaintiffs for realization of rent from the defendants to the extent of 11-18 share on the allegation that such share was allotted to them by partition. The defence was that the plaintiffs were not entitled to recover a share of the rent as there was no separate collection. Both the Courts have found that the plaintiffs are not entitled to recover rent on the ground that a co-sharer landlord cannot sue for his own share of the rant without making the other co-sharers parties or without proving separate collection or praying for apportionment of rent. The learned vakil who appears for the appellants contends that these cases may be treated as cases for apportionment of rents. He bases his argument on the partition decree among the owners of the land in which the plaintiffs share is found to be 11-18ths. We are of opinion that we cannot convert a simple suit for rent into a suit for apportionment of rent. A suit for apportionment of rent, should be properly framed so as to implead all the co-sharers and the tenants who are necessary parties. The law with regard to such suit has been laid down in the case of Ishwar Chandra v. Rama Krishna (1880) 5 Cal. 902 which has been explained in the case of Satyes Chandra v. Haji Jittar Rahman (1917) 27 C.L.J. 438. The view expressed in the last case is thus stated A co-sharer cannot as a matter of right, claim from the tenants what he estimates to be his proportionate share of the rent.

(2.) THE result is that the view taken by the Courts below is correct and that these appeals are dismissed with costs.