HAREKRISHNA DATTA Vs. GOURHARI SETNA PODDAR

JUDGEMENT

(1.) In this case the superior interest in the holding with which we are concerned belonged originally, as regards 8 annas, to defendants 2 and 3 in the present suit and the other 8-annas belonged to defendants 4 and 5. The tenant was defendant 6. Defendants 4 and 5 granted a mourasi mukarrari settlements of their 8-annas to defendant 1 in the present suit and he, in 1920, by Suit No. 1453 of 1920, sued the tenant for rent, making defendants 2 and 3--the other 8-annas sharers--parties to the suit. He obtained a decree on 7 January 1924, and proceeded to sell in execution and purchased the property in execution on 22 April, 1924. The plaintiff in the present suit is a purchaser from the other 8-annas cosharers--defendants 2 and 3--and, after his purchase in 1925, he brought a suit (No. 937 of 1925) against the tenant, making defendant 1 a party, as being a cosharer landlord. We are informed and we may take it, that the suit was intended to be framed under Section 148-A, Ben. Ten. Act. The tenant did not defend the plaintiff's suit for rent. The claim in the case was for a period partly before the execution sale to defendant 1 in April 1924. Defendant 1--the appellant before us-- filed a written statement, setting up that he had brought the holding and was the tenant thereof after April 1924. He claimed that the plaintiff should not be allowed to recover rent after April 1924 against the original tenant, but could get rent only from himself. The Munsif in that rent suit held in favour of defendant 1's contention. He held that the decree for rent against the original tenant must be confined to the rent accruing due up to April 1924 and he gave a decree against defendant 1 for rent after that date.

(2.) In the present suit the plaintiff desires to have it established that defendant 1 is not entitled to this holding. He makes the case that, in the first suit, which was by defendant 1 against the tenant in 1920, all processes were suppressed so far as the plaintiff's predecessors-defendants 2 and 3 before us-were concerned. In making that case however he had a preliminary obstacle to overcome the Judgment in his own rent suit No. 937 of 1925 and the question which arises before us and upon which the Courts bellow have differed, is the question whether or not the decision in that rent suit |No. 937 is a bar to the plaintiff's contending that the proceedings in the suit of 1920 were invalid and the sale to defendant 1 of the holding inoperative and void. The trial Court took the view that the plaintiff could not overcome this plea in bar. The lower appellate Court has taken the view that the decision in the second suit does not debar the plaintiff from making the ease which he seeks to make. It has come to the conclusion that it was no part of the business of the Munsif, trying the rent suit, to decide whether or not defendant 1 had made out a good title to the holding. Its view is that the claim was a claim for rent against the original tenant, that the only matter in issue was whether the original tenant was liable to pay rent and, and if so how much and that the question, as between the plaintiff and the present defendant 1, was a question which was unnecessarily raised-the plaintiff in that suit claiming no relief at all against the present defendant 1. We have to consider what the correct view is upon that point.

(3.) The first thing we have to observe is that a suit, which is framed under Section 148-A, Ben. Ten. Act, is notionally at all events a suit for the entire rent. If the plaintiff does not know what rent has been paid to his cosharers, he, by impleading them, gives them a chance to raise any case they may have on that point. The intention is that the suit for the period covered is to deal with the whole of the rent so that the tenant is not subjected to a multiplicity of suits in respect of the same matter. When the plaintiff sued defendant 6 for rent he was met by a claim on the part of his cosharer that the cosharer himself had become tenant and the cosharer was, as it seems to me, entitled to object to any decree being passed in his presence against another for the whole or a part of the rent of the holding after his alleged purchase in April 1924. Had he permitted such a decree to be passed in his presence he would have great difficulty in maintaining, as against the plaintiff, that he himself was the tenant after April 1924. At its lowest he would have been allowing a cloud" to come over his title, whatever his title was to the holding. In these circumstances in the rent suit, this defendant objected to the plaintiff's getting any decree in his presence for rent after April 1924 against the original tenant. The plaintiff in these circumstances might have taken the attitude: I do not wish to contest now and here the validity or effect of the execution sale to defendant 1, I will give up my claim against the original tenant for any rent after April 1921. I do not want in this suit to contest with defendant 4 the question whether defendant 6 is liable-after April 1924.