MT BIBI SAFIA Vs. YUSUF MDMUZAFFAR

JUDGEMENT

(1.) This appeal arises out of a decree of the learned Subordinate Judge of Patna, dismissing a suit to recover arrears of mukarrari rent.

(2.) There were two plaintiffs in the suit, Bibi Sayeedunnisa and her daughter Bibi Safia, and the circumstances out of which the appeal arises are somewhat exceptional. It is admitted that Bibi Sayeedunnissa was a cosharer landlord of the estate in which the mukarrari tenure is situated, and throughout the period from 1343 Fasli up to 15 pus, 1346 Fasli, her name was recorded in register D. In 1989 her daughter, Bibi Safia, instituted a suit to recover arrears of rent due in respect of the mukarrari tenure for the period from 1848 to 1346 Fasli. In this suit, in which Bibi Sayeedunnisa did not join as a plaintiff, Bibi Safia asserted that, at the time of her marriage, which took place at the end of 1342 Fasli or at the beginning of 1348 Fasli, her mother had made an oral gift to her of her proprietary rights. Bibi Safia had delayed in taking steps to have her name entered in register D. Her name was not entered there until 2l December, 1938, and the learned Subordinate Judge who tried the suit gave her a decree for arrears of rent which accrued due after that date. So far as the claim for the antecedent period, that is, the period prior to 15 of Pus, 1346, was concerned, the learned Subordinate Judge dismissed the suit on the ground that he was not satisfied that there had been any oral gift or, at all events, that that oral gift had been made at the end of 1342 Falsi. Bibi Sayeedunnissa and Bibi Safia then instituted the suit out of which this appeal arises, in which they sought to recover rent for the period from 1343 Fasli up to 15 of Pus, 1346 Fasli, and again for the period from 1837 Fasli to 1349 Fasli. Subsequently, the two ladies appear to have been advised that the suit might fail for misjoinder of plaintiffs and misjoinder of causes of action and so Bibi Safia later instituted another suit to recover arrears of rent for the period from 1347 to 1849 Fasli. This suit was decreed and the claim made for that period in the suit out of which this appeal arises was, therefore, disallowed. Thus, we are not concerned solely with the claim made for the period from 1348 Fasli up to the 15 Pus 1346 Fasli.

(3.) It is quite clear that Bibi Safia, plaintiff 1, was not entitled to maintain another suit in respect of the period from 1346 Fasli up to the 15 Pus, 1346 Fasli, her claim to rent for that period having been disallowed in the prior suit. It is, perhaps, unfortunate that plaintiff 2, Bibi Sayeedunnissa, did not institute a separate bait in respect of this period. If she had done so, and had not joined her daughter in that suit as a co-plaintiff, she would certainly have been given a decree. It was still more unfortunate that in para. 2 of the plaint the following averment was made: By means of a verbal gilt plaintifi 2 made over the said property to plaintiff 1 from 1343 Fasli. Plaintiff 1 instituted Bent Suit No. 3 of 1939 in the second Court of Sub-Judge at Patna. But since the name of plaintiff 1 was not recorded before 22-12-1938, the Court did not pass a decree for the period from 1343 Fasli to 15 Pus, 1346 Fasli, on this ground that the title of plaintiff 2 was intact during the aforesaid years. Hence it is necessary for both the plaintiffs to institute this suit.