RAI BAIKANTHA NATH SEN BAHADUR Vs. RAMAPATI CHATTERJEE

JUDGEMENT

(1.) The question for determination in this Rule is, whether the suit as framed is maintainable under Section 148A of the Bengal Tenancy Act. The plaintiff alleged, in the first paragraph of the plaint, that he had separately collected his share of the rent from the tenant-defendant in previous years. In the second paragraph he stated that he had demanded his separate share of the rent from the tenant but to no avail. He added, in the third paragraph, that he was not aware whether his cosharers (whom he joined as defendants) had separately realised their shares of the rent. In the first clause of the fourth paragraph he prayed that a decree might be made in his favour for his share of the rent; then followed a second alternative clause to the effect that if it was found that the tenant had not paid the rent due to his co-sharers, he might be granted leave to amend the plaint so as to secure a decree for the entire sum. We are of opinion that this is not a plaint in a rent suit of the character contemplated by Section 148A.

(2.) Reference has been made to the decisions in Pergash Lal v. Akhowri Balgobind Sahoy 19 C. 735 : 9 Ind. Dec. (N.S.) 932 and Nunda Lal Choudhury v. Kala Chand Choudhury 8 Ind. Cas. 50 : 15 C.W.N. 820 which, however, do not support the contention of the plaintiff. In each of these cases the plaintiff-landlord instituted the suit on the allegation that rent was recoverable by him jointly with his co-sharers and that he was obliged to institute a suit alone inasmuch as his co-sharers had not joined and had not disclosed how much, if any, sum was due on account of their shares, in the Base before us, the plaintiff throughout the plaint proceeds on the allegation that he has previously collected his share of the rent separately and in the first prayer clause actually seeks to recover that share. No doubt, as pointed out by the Judicial Committee in the case of Pramada Nath Roy v. Ramani Kanta Roy 35 C. 331 : 7 C.L.J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 35 I.A. 73 : 18 M.L.J. 43 : 3 M.L.T. 151 (P.C.) and subsequently by this Court in the case of Bhola Nath Bose v. Belchambers 10 Ind. Cas. 891 : 14 C.L.J. 373, co-sharer landlords, who by arrangement with the tenants collect their shares separately and have in previous years brought separate suits for recovery of their dues, are competent to sue jointly for the total amount due to them under the terms of the original lease, which can be enforced by all the co-sharers together without the consent of the tenants. But it is plain that if a plaintiff seeks to avail himself of the special provisions of Section 148A, he must in his plaint seek to recover the entire amount due to himself and his co-sharers; this the present plaintiff has failed to do. The Courts below have concurrently found that the plaintiff never collected his share of the rent separately and that the evidence he has adduced in support of the allegation made in the plaint is untrustworthy. In our opinion, the suit as framed is not a suit under Section 148A and should not have been entertained. We cannot accept the contention that there is no substance in this objection. The nature of the decree to be made in the suit depends upon its true character. If it is a suit for the share of the rent recoverable by the plaintiff separately by reason of the fact that he has on previous occasions collected that share of the rent separately from his co-sharers, the decree will be a money decree; if, on the other hand, it is a decree in a suit properly framed under Section 148A, the decree will operate as a rent-decree, capable of execution under the special procedure prescribed by the Bengal Tenancy Act. We are accordingly of opinion that this Rule must be made absolute and the suit dismissed with costs, inasmuch as the allegation of separate collection has not been established. We assess the hearing fee in this Court at one gold mohur.

(3.) A similar order will be drawn up in Rule No. 306 of 1917.