NIBARAN CHANDRA ROY Vs. NABIN CHANDRA ROY

JUDGEMENT

(1.) This is an appeal by the defendants and arises out of a suit brought by the four plaintiffs, the owners of an one-sixth share of a taluq. The other co-sharers were also joined as defendants and the plaintiffs prayed for a decree for the entire rent in the presence of the other co-sharers. The defence of the defendants was that the suit so far as the entire rent was claimed was not maintainable because the plaintiffs co-sharers, the pro forma defendants in the suit, were not registered in the landlord's sherista and that so far as they are concerned Secs.15 and 16 of the Bengal Tenancy Act would be a bar to their claim, The next contention of the defendants was that the rents for the years 1323 and 1324 were barred because some of the co-sharer defendants were brought on the record at a time when the claim for rent for those two years would be barred. The Munsiff gave effect to his contention and dismissed the suit. Before the learned Subordinate Judge the plaintiffs in the presence of their co-sharers prayed for a decree to the extent of their one-sixth share only. The lower Appellate Court has given them a decree but has allowed costs to the plaintiffs in full on the full amount claimed. Against that decree and judgment the defendants have appealed and the learned Vakil who appears for them has raised three points in support of the appeal. The first point is that the plaintiffs as owners of an one-sixth share were not entitled to a decree as there was no separate collection of that share before the suit was brought. The second contention was that so far as the rents for the years 1323 and 1324 were concerned they were barred by limitation and the third point is that the plaintiffs ought not to have obtained costs for the entire rents.

(2.) As to the first point, the learned Vakil relied upon the case of Nepal Chandra Ghose v. Mohendra Nath Roy Chowdhury (1904) 31 Cal. 707. A reference to that case shows that in that case the suit for one-fourth share of the plaintiff was dismissed on the ground that the plaintiff in that suit claimed as an owner of the entire 16 annas share when his interest was found to be 4 annas and that he wanted a decree to the extent of his share although the other co-sharers owning the remaining 12 annas share were no parties to the suit and Sir Francis Maclean points out at page 709 of the report: " It is argued that the plaintiff sued originally for the whole 16 annas share, but is found entitled only to a 4 anna share of the rent, that his co- sharer landlords are not co-plain-tiffs nor defendants, that there is no allegation or proof of any arrangement between the landlords and the tenants that the tenants should pay each co sharer his proportionate share of the entire rent and that, in the absence of any such arrangement, the suit is not maintainable." Here the circumstances are somewhat peculiar. The plaintiffs have got their names registered in the landlord's books. Therefore, so far as they are concerned they are not barred by the provisions of Secs.15 and 16 of the Bengal Tenancy Act but so far as the owners of the five-sixths share are concerned their names are not so registered and therefore they are debarred from suing for rent. Under those circumstances the plaintiffs in the presence of those co-sharers should be entitled, after proving in the presence of their co-sharers that they are owners of the one-sixth share of the taluq, to recover rent to the extent of their share. 1 can see no objection on principle that a co-sharer landlord may not in the presence of the other co-sharers who are incompetent to realise their rent sue for his rent and recover it although there had been no separate collection before. It cannot be denied that the co-sharers may at any time start separate collection of their rent without any reference to the tenants and that when a suit is brought for a share of the rent making all the co-sharers parties and the plaintiffs share in the property is established I see no reason why the plaintiffs in a suit properly framed, should not get their shares of rent. In the present case the denial of the plaintiffs right to recover their share of rent separately would be a total denial of their right to recover their share of the rent. We think that this contention is not tenable.

(3.) The next contention is based on a misapprehension that so far as the owners of the one- sixth share were concerned all the plaintiffs were parties when the suit was originally brought. Therefore so far as the one-sixth share is concerned the claim for no portion of the rent is barred. With regard to the third contention, however, we think that the defendants have a just cause for complaint. The plaintiffs have succeeded to the extent of their one-sixth share and there is no reason why the ordinary rule as to costs should not prevail and why the parties should not get their costs according to their success or otherwise in the litigation. The result therefore is that the decree of the learned Subordinate Judge is modified as to costs and we direct that the plaintiffs do recover costs of the two Courts below according to their success and that the defendants do get costs to the extent of the dismissal of the plaintiffs claim. In the circumstances, we make no order as to costs in this appeal. Greaves, J.