SITAL CHANDRA BHATTACHARJEE Vs. SHEIKH AFILUDDIN

JUDGEMENT

(1.) This is a second appeal in a suit by a co-sharer landlord for his share of the produce rent. The plaintiff has made his co-sharers parties defendants in the suit and has prayed in the alternative that, if it be found that separate collection has not been proved, a decree may be passed for the whole amount. The learned District Judge has found that no case of separate collection has been made out and has dismissed the plaintiff's suit in toto. A preliminary objection has been raised in this Court that no second appeal lies. There is a conflict of rulings on this point and the Judges of this Court have been by no means unanimous. In the case of Jogendra Nath Ghose V/s. Paban Chandra Ghose 8 C.W.N. 472 the late Chief Justice sitting with Mr. Justice Pargiter held that an appeal did lie on the ground that a suit for rent by a co-sharer landlord was not a suit under the Bengal Tenancy Act and,therefore,the provisions of Section 153 of the Bengal Tenancy Act did not apply. The question was referred to a Full Bench of this Court; but, as it transpired that the question did not immediately arise in that case, it was not decided. Later, the question of the rights of co-sharer landlords in rent suits came before their Lordships of the Judicial Committee in the case of Raja Promoda Nath Roy V/s. Raja Ramani Kanta Roy 12 C.W.N. 249 (P.C.); 10 Bom. L.R.66; 7 C.L.J. 139; 8 M.L.T. 151; 18 M.L.J. 43; 35 C. 361. In that case, their Lordships expressed the following opinion: It is a general rule--a rule not derived from the Bengal Tenancy Act but from quite another branch of law, namely the general principles of legal procedure--that a sharer whose co-sharers refuse to join him as plaintiffs can bring them into the suit as defendants and sue for the whole rent of the tenure. This must apparently be the law applicable to the present case unless there be something to exclude the case from the operation of these general rules;" and, later on, they say: "The filing of a suit is not a thing which the landlord is, under the Act, required or authorised to do. It is an application to the Court for relief against an alleged grievance, which the plaintiff is entitled to submit, not by reason of any provision of the Tenancy Act, but under the general law." That case did not, it is true, deal with the question of the right of appeal under Section 153 of Bengal Tenancy Act. But the matter again came before the learned Chief Justice Sir Francis Maclean sitting with Mr. Justice Doss and they held See Bhagabati Bewa V/s. Nanda Kunwar 12 C.W.N. 835 Ed that, whatever might have been the view taken in previous cases, the case in question was governed in principle by the recent ruling of the Judicial Committee to which we have just referred and they were of opinion that no appeal in that case lay from the Munsif to the Subordinate Judge. Following those later rulings, we hold that no second appeal lies in this case.

(2.) We are asked to interfere in this case in revision under Section 115, C.P.C., but we do not feel disposed to do so.

(3.) The appeal accordingly fails and is dismissed but without costs.