Mahanth Gosain Madhua Nand Ram vs Mohammad Khan

Mullick, J.—This second appeal arises out of a suit for rent in respect of the years 136, 1317, 1318 and 1819. The claim for the last quarter of 1818 and for the whole of 1319 has been abandoned and we are, therefore, concerned in this second appeal only with the rent of 1316, 1317 and three-quarters of 1318.

The lower Appellate Court has found that the plaintiff is recorded in respect of 15 annas 17 dams share in the Mauzah in suit and that the remainder of the mauzah belongs to Rachya Kuer and Farcha Kuer. The learned Subordinate Judge is also of opinion that as the plaintiff has been unable to show separate collection in respect of his share and has not joined his co-sharers in the suit as defendants, the whole suit must fail.

The tenants contended that the plaintiff''s share was not 15 annas 17 dams, but a good deal less. We are not here concerned with what the plaintiff''s share exactly is. The ground upon which the plaintiff must fail is that upon the authorities a suit such as present cannot be maintained. The cases of Nepal Chandra Ghose Vs. Mohendra Nath Roy Chowdhury, and Lala Ram Saran Lal v. Nem Narain Singh ( 6 C.W.N. 326 at p. 327) are authority for the proposition that a co-sharer who has no right to separate collection cannot maintain a suit for rent without joining his other co-sharers in the suit.

The learned Vakil for the appellant has strongly pressed upon as that even if the plaintiff is not entitled to a rent decree, he is under the general law entitled to a money decree for that part of the rent which represents his share in the mauzah. Both on principle and upon authority his contention must fail. The plaintiff made the case in the Trial Court that he had purchased the shares of Rachya Kuer and Farcha Kuer and he failed in proving that case. I do not think that in these circumstances we should allow him at this stage to amend his plaint by joining Rachya Kuer and Farcha Kuer as defendants.

The result is that the appeal is dismissed with costs.

This judgment will govern Second Appeal No. 126 of 1915 [Mahanth Gosain Vadhwa Nand Ram v. Nazir Khan].

Atkinson, J.

I concur.