Sayed Azizuddin Ahmad and Others vs Keshwar Mahton and Others

Agarwala, J.—The plaintiffs are the appellants. The plaintiffs are the cosharer landlords of a holding. One of their cosharers, in a suit framed in accordance with the provisions of Section 148A, Ten. Act, sued for the rent of the years 1342 to 1345, impleading the plaintiffs as defendants. In that suit a decree was passed. The plaintiffs have now sued for their share of the rent for the years 1348 to 1346. The Court of appeal below has held that the decision in the former suit operates as res judicata so far as the claim for 1843 to 1345 is concerned.

The question arises whether a decision in a suit framed u/s 148A, Ten. Act, by one cosharer operates to bar a suit by another cosharer for his share of the rent. In R.C. Deb Vs. Lachhmi Prosad Singh and Others, , Mohamad Noor J. held that such a suit is barred. It is contended on behalf of the plaintiffs-appellants, however, that the observations in that case on this point were obiter. Even if this be so, they are implicit in the Division Bench decision of this Court in Ram Dhyan Singh v. Pardip Singh AIR 1919 Pat. 418, where the essential principles underlying Section 148A were stated to be

first, that the suit should in form be for the whole rent, and in substance for the separate share of the rent in arrears and, secondly, that the whole body of landlords are impleaded, with the allegation that the plaintiff has not been able to ascertain what, if any, rents are due to the former. In such oases the whole rent due must, in the nature of things, be always a matter of speculation for the plaintiff and he is entitled to assert that he believes that his share of the rent due is the entire rent due and ask the Court to decide on the accuracy of that belief, if and when the impleaded cosharers appear and claim any arrears as due to themselves. If his belief is accurate the Court will give him a decree for his share of the rent only as being the entire rent due; if inaccurate, the Court will investigate and decree the arrears due to the impleaded cosharers as well.

The effect of this is as follows: In a suit framed u/s 148A, if the cosharers impleaded as defendants do not allege that rent is due to them, it must be taken that the only rent due from the tenant is the amount claimed by the plaintiff. It follows that a cosharer impleaded as a defendant in a suit framed u/s 148A, who does not allege that any rent is due to him, cannot be subsequently heard to assert that his share of the rent has not been paid by the tenant. In other words, a suit by him in such circumstances is barred by the rule of res judicata, his claim for a share of the rent being a matter which he might and ought to have asserted in the first suit. This result also follows from the decision in Hafiz Zeauddin v. Nakal Singh AIR 1935 Pat 102, where it was held:

The plaintiff must sue for the whole amount of arrears which he knows to be due, whether to himself or to any body else; but when he does not know the actual amount due to other cosharers, he should pray that if rent should be found payable to the other cosharers a decree in their favour should be passed after realisation of deficit court-fee.

This clearly indicates that in a suit framed under 8. 148A the issue is not merely the amount of rent due to the plaintiff but the entire amount due from the tenant. In substance what the plaintiffs allege is: the rent of the holding is so much, I know that my share has not been paid. I do not know whether my cosharers have been paid; I, there, fore, assert that the share which I claim is all that is at present due from the tenant; but if I am wrong, let a decree be passed for all that is due. The cosharers being parties to the litigation had the opportunity of raising as between themselves and the tenant the question whether their shares had been paid and if they failed to avail themselves of this opportunity they are not at liberty to sue for their shares subsequently. For the plaintiffs-appellants reference is made to the case in Tanwanginee Debi v. Abhoyacharan AIR 190 Cal. 169. The actual question decided in that case is not quite the same as the one that falls to be decided in this litigation; but even if the High Court of Calcutta must be held to have taken a view different from the view of this Court in the cases to which I have referred, it is the cases of this Court that I am bound to follow.

The result is that this appeal fails and must be dismissed with costs.