KISHORI MOHAN TALAPATRA Vs. OSI PRAMANICK

JUDGEMENT

(1.) The plaintiff in this suit is common manager on behalf of Zamindars and Putnidars owning shares totalling 14-annn 1-ganda in an estate. The pro forma defendants own the remaining 1-anna 19-gandas share. He brought the suit out of which this appeal arises to recover rents from the principal defendants for the last three kists of the year 1317 B.S., for the whole of the years 1318 and 1319 B.S. and for the first three kists of the year 1320 B.S. He claimed Rs. 757-11-9 as his share of the rent and in the alternative asked that a decree might be passed for Rs. 862-14-3 for the 16-annas rent, awarding him his share. He was granted a decree for rent of the three kists of the year 1320 B.S. only, the decree being for the 16- annas rent for this period. He appealed without success to the Subordinate Judge of Pabna and has now preferred this second appeal to this Court, his contention being that his claim for rents of the years 1317, 1318 and 1319 should have been allowed.

(2.) As regards the arrears of the years 1318 and 1319 B. S., it appears that the pro forma defendant Swarnamoyee Dasya previously brought a suit for these some arrears making the plaintiff in this suit a pro forma defendant. In that suit a decree was passed for the entire rent in favour of Swarnamoyee and the plaintiff in respect of their respective shares. The plaintiff in the present suit is unwilling to execute that decree, because one of the judgment-debtors claims to have purchased part of the holding and the plaintiff refuses to recognise this transfer. The plaintiff might have avoided this difficulty by contesting that suit but as long as that decree stands, he cannot obtain a second decree for the same arrears of rent.

(3.) The claim for rent of the last three kists of 1317 B.S. has been dismissed on the ground that it is barred by limitation. Four of the heirs of the original tenants of the holding were omitted from the list of principal defendants when the plaint was filed and were subsequently added as defendants after the period of limitation for this portion of the claim had expired. Both the lower Courts have held, on the authority of the decision in Kashi Kinkar Sen v. Satyendra Nath Bhadro 4 N.L.R. 71 at p. 73 : 8 Cr.L.J. 11, that as the claim against these defendants is barred the remaining tenant defendants cannot be made separately liable for the entire rent. This decision was followed in the ruling Shaik Saked v. Krishna Mohan Basak 35 Ind. Cas. 563 : 24 C.L.J. 371, to which one of us was a party. The case of Jogendra Nath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026 on which the learned Pleader for the appellant relies, was there distinguished on the ground that it did not appear to be the case of an inherited con-tract. Reliance is also placed on the decision in Chamatkarini Dasi v. Triguha Nath Sardar 19 Ind. Cas. 989 : 17 C.W.N. 833, as supporting the contention that the appellant was at least entitled to a money-decree against those tenants against whom the claim is pot barred. But in that case a decree had been obtained against one of several joint tenants and the Court had not to determine whether that decree had been rightly granted but what was the effect of a sale under that decree. In the case mentioned above, Shaik Sahed v. Krishna Mohan Basak 35 Ind. Cas. 563 : 24 C.L.J. 371, a money-decree had been granted and it was held that as there was no joint contrast that decree must be set aside. Under certain circumstances one of several joint tenants may be made liable for the whole rent, but it has not been shown that the facts of the present case make it distinguishable from the two. above mentioned cases in which the contrary was held. We accordingly hold that the lower Courts were right in dismissing this portion also of the plaintiff s claim.