JUDGMENT
Jamuar, J.
1. This appeal is by the defendants first party arising out of a suit brought for assessment of fair rent and compensation for use and occupation for a period of three years prior to the institution of the suit. The trial Court passed a decree assessing the rent of the land in suit at the rate of Re. 5 per bigha and ordered that the plaintiffs shall be entitled to realise cess on this amount at the schedule rate. The plaintiffs were also held entitled to damages for use and occupation for the aaid period on the basis of that rental. The plaintiffs had impleaded the tenants as the defendants first party and his co-sharers as the defendant second party.
2. Against the decree given by the trial Court, the defendants first party appealed to the Diatrict Judge of Amah and the appeal was heard by the fourth Additional Subordinate Judge of Acrah, who by bis judgment, dated 16th January 1947, dismissed the appeal. Hence this second appeal.
3. The land in respect of which an assess-ment of fair rent was sought measures 20.28 acres appertaining to Khata No. 314, Khewat No. 1/28 of village Babhniaon. The share of the plaintiffs is to the extent of one-sixth, while the defendants second party are entitled to the remaining five-sixth. The lands have been recorded in the survey papers as occupancy lands of. Mt. Lakhraje Kuer, the predecessor-in-infereat of the defendants first party. No rent is recorded for the laud bat it is entered that the land is “Kabil Lagan”, The plaintiffs alleged that they had asked the defendants first party to get a fair rent assessed, bat with no result. They, accordingly, instituted their suit claiming rent at the rate of Rs. 10 per bigha as also, as already stated, for compensation for use and occupation at the same rate.
4. The defendants second party did not contest the suit.
5. The main defence of the defendants first party was that the lands in suit already bore rental at the rate of Re. 1 per bigha, and that, therefore, no fresh rental was assessable. They alleged that they had been paying rent at this rate all along to the defendants second party to the full knowledge of the plaintiffs and their ancestors. Their farther defence was that even if new rental was assessable, a fair and equitable rent would be at the same rate, namely, Re. 1 per bigha.
6. Both the Courts below have found that no rent has been assessed on the lands in suit so far as the plaintiffs are concerned. But that as the lands are entered in the survey records as “Kabil Lagan”, they assessed a rent of Rs. 5 per bigha as being fair and equitable. They have further found that so far as the defendants second party are concerned, it has been shown by means of documents that they have been realising their proportionate share of the rent on the basis that the total rent is Rs. 37 besides cess. But it has been held that these documents are not binding on the plaintiffs.
7. Mr. Sinha, who appeared for the appellants, argued two points in support of this appeal. It was contended, in the first plaae, that under Section 188, Bihar Tenancy Act, it was incumbent for the plaintiffs to join their other co-sharers as plaintiffs in the suit and that by their omission to do so the suit was not maintainable; and, in the second place, it was argued that the Courts below were in error in assessing rent at the rate of RS. 5 per bigha so far as the plaintiffs were concerned for the reason that by so doing there will now henceforth be two rentals in respect of the same holding, namely, a rental payable to the defendants second patty at the rate of Rs. 37 for the entire holding, that is to gay, the rant payable to them would be five-sixth of Rs. 37, and that there would be another rental payable to the plaintiffs in respect of their one-sixth share at the rate of Rs. 5 per bigha, which would be against law.
8. I do not think that either of the two contentions can succeed. The case of Gour Sundar v. Krishna Kamini, 54 C.L.J. 74 : (A. I. R. (19) 1932 cal. 41) is in point. It was held therein that a suit to have fair and equitable rent assessed, is consistent with and arises out of the general law and is not one which the landlord is required or authorised to do under Section 188, Bengal Tenancy Act, with the result that in such a suit that section has no application. It is, therefore, unnecessary to join the other co. sharers as plaintiffs, but they should be made party defendants. Section 188, Bihar Tenancy Act, provides that where two or more persons are joint landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, or by an agent authorised to act on behalf of both or all of them. Where a plaintiff brings a suit for fair and equitable assessment of rent, he is not doing anything which he is, under the Tenancy Act, “required or authorised to do” within the meaning of Section 183 of the Act. The other co-sharers having been impleaded, there is no defect in respect of the maintainability of the suit and there is no bar to the plaintiffs getting a decree.
9. In the same case Gour Sundar v. Krishna Kamini, 54 C. L. J 74 : (A. I. R. (19) 1932 Gal. 41) there were two suits brought for assessment of fair and equitable rent and for recovery of damages for use and occupation of lands during a certain period as also for other reliefs. The entries in the record-of-rights showed that the tenant defendant paid certain amounts to the pro forma defendant as rent but no rent was shown as payable to the plaintiff, as is the case in the present suit out of which this appeal has arisen. The record of-rights also contained a note that the tenancies forming the subject-matter of those suits were liable to be assessed with rent in respect of the shares of the co-sharers landlords, of whom the plaintiff was one. The plaintiff’s claim was accordingly based upon the allegation that no rent had been settled as payable by the tenant defendant in those suits in respect of his share. The plaintiff obtained a decree. No authority was cited in support of the argument that the assessment of rent in respect of the plaintiffs’ share would be against law. In my opinion, the Courts below have committed no illegality in giving a decree to the plaintiffs. In the circumstances, I see no justification for interference with the judgment and the decree passed by the Courts below.
10. The appeal is, therefore, dismissed with costs.
Reuben J.
11. I agree. Gour Sundar v. Krishna Kamini, 54 C. L. J. 74 : (AI R. (19) 1932 Cal. 41) is an authority that a tenant, holding under two co-sharer landlords and paying rent to one co-sharer landlord in respect of that landlord’s interest, may be assessed to rent in respect of the interest of the other co-sharer landlord vide also Chiranjib Sen v. Mohendra Nath,. 32 C. W. N 1238 : (A. I. R. (16) 1929 Cal. 90). It was argued before us that, since one set of co-sharers is realising rent at the rate of one rupee a bigha, this must be taken to be the rate payable in respect of the entire holding. The two cases to which I have just referred are authorities to the contrary, since they contemplate that the co-sharer landlord in respect of whose share no rent has been agreed to between him and the tenant, may sue for an assessment of the rent payable to him. It is also well settled that where a tenant holds under different sets of co sharer landlords, each set can enter into a separate agreement with him as regards the rent payable to it so far as its share is concerned, vide Jognesh Prokash v. Maniraddi, 35 Cal. 417 Banerjee J, observed in Hurry Churn v. Runjit Singh, 1 C. W. N. 521 : (25 Cal. 917n) that tenancies of this class are not uncommon. Under the authority of Jatindra Nath v. Prasanna Kumar, 38 Cal 270 : (38 I. A. 1 P. C ) the co-sharer landlords would still be joint landlords within the meaning of Section 188, Bihar Tenancy Act, but this is not an obstacle in the way of the plaintiffs, since a suit for assessment of rent is not governed by Section 189: Partap Mahton v. Mt. Wazirunnisa. 4 pat. 604: (A. I. R. (12) 1925 Pat. 559).