JUDGMENT
Maclean, C.J.
1. In this case certain persons, as landlords, granted a lease of certain immoveable property to certain persons as tenants. By an arrangement between some of the co-sharer landlords and one of the co-sharer tenants who was entitled to a fractional share in the tenure, the latter has paid for many years past his share of the rent to the co-sharer landlords I have referred to, who are now suing him for arrears of his share of the rent. The co-sharer tenant now sets up for the first time, and after this long period of payment, that he is entitled to a reduction of rent in respect of a deficiency existing in the area of his tenure as compared with the area for which rent has been previously paid by him, and claims the benefit of Section 52, Sub-section (b) of the Bengal Tenancy Act. The question we have to decide is whether or not, as a mere co-sharer in the tenure, he is entitled in this suit to which neither the other co-sharer landlords nor the other co-sharer tenants are parties, to ask for a measurement, and to obtain any reduction, if any deficiency be proved. The Munsif has held that he is not so entitled; the learned Subordinate Judge has reversed that decision; hence the present appeal by the plaintiffs, who are the fractional landlords.
2. The solution of the point turns upon what is the true meaning of the expression “every tenant” in Section 52 of the Bengal Tenancy Act; whether it applies only to a tenant of the entire tenure, or whether it includes a tenant who has only a fractional interest in the tenure and who claims the benefit of the section in a suit constituted as is the present. In my opinion the question ought to be answered in the negative.
3. It has been held in this Court–I am referring to the most recent decision in the case of Baidya Nath De Sarkar and another v. lim and others (1897) I.L.R., 25 Cal., 917–that a fractional shareholder, I mean one of several joint-landlords owning a share, cannot bring a suit for enhancement of rent. That decision doubtless turned to a considerable extent upon Section 188 of the Act, but it is difficult to see why the principle, which evidently underlies Section 188, should not apply to the converse case of a co-sharer tenant claiming the benefit of Section 52 in a suit such as the present.
4. In my opinion the expression “tenant” in Section 52 does not include the case of a mere co-sharer tenant who has only a fractional share in the tenure; it means the tenant of the tenure, not one of many tenants. To hold that, in a case of this class it applied to a co-sharer tenant would result in much confusion, and almost endless litigation. For, if such were the true construction, every co-sharer landlord and every co-sharer tenant might possibly bring separate suits under this section. That can scarcely be. This view inflicts no injustice upon the co-sharer tenant, who can bring a suit under Sub-section (b) of Section 52 of the Act for the purpose of having the rent reduced on the ground of deficiency in the area, if, as I think he must, he make all the joint-landlords and all the joint-tenants parties to the suit.
5. On these grounds I consider the view taken by the Munsif was right, and that this appeal must be allowed with costs.
Banerjee, J.
6. I am of the same opinion. The question raised in this suit, which was brought by some of several joint-landlords against one of several joint-tenants for recovery of the plaintiff-landlords’ share of the rent payable for the defendant-tenant’s share of the tenure under a previous arrangement, is whether the tenant defendant can claim abatement under the provisions of Section 52 of the Bengal Tenancy Act in such a suit. The first Court answered that question in the negative and gave the plaintiffs a decree at the old rate of rent. On appeal by the tenant-defendant, the Lower Appellate Court has answered the question in the affirmative, reversed that decree, and remanded the case to the first Court. And against this decision of the Lower Appellate Court the present appeal has been preferred by the plaintiffs.
7. The contention on behalf of the tenant-defendant was that he was entitled to abatement of rent under Clause (6) of Sub-section 1 of Section 52 of the Bengal Tenancy Act. That clause provides that “every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him,” &c, &c, and the question is whether the term “tenant” there includes one of several joint-tenants, the term rent, any portion of the rent” and the term “tenure” a share of a tenure.
8. Evidently the language of the section is in favour of the appellants’ view. Then is there anything in reason or justice which would support the defendant’s contention and justify our holding that a tenant-defendant in a suit like the present is entitled to claim the benefit of this clause. The only reason which the learned Counsel for the respondent has been able to point out is, that if his contention be not accepted, then the result will be that great difficulty will be thrown in the way of a tenant’s obtaining abatement of rent when he is circumstanced as the defendant is in the present case, where he is one of several joint-tenants holding a tenure under several joint-landlords, who have been in separate receipt of rent. But I do not think there is any real hardship in the case, so far as the tenant-defendant is concerned. It is always open to him to bring a suit for abatement of rent, making all the joint-landlords, and his co-sharers in the tenancy parties to the suit; and he can obtain abatement, if his case is well-founded. On the other hand to accept the respondent’s contention as correct would result in much inconvenience and many anomalies. For, in that case the plea of abatement may be raised in every one of the suits, which the several joint-landlords may bring against the several joint-tenants, and as the judgment in none of these suits would be evidence in any of the others, the Court will have to try the question of abatement as often as there are suits brought, and it may be, with as many varying results, according to the nature of the evidence adduced in each case. The contention on behalf of the appellants, therefore, is in accordance not only with the words of the section relied upon, but also with the spirit of the law and with reason and justice.
9. I may add that, so far as the landlord’s right to claim enhancement or increase of rent is concerned, that right can be claimed only in a suit brought by all the joint-landlords. It is true that under the Bengal Tenancy Act that is so under the express terms of Section 188 of that Act; but under the law as it stood before the passing of the Bengal Tenancy Act, the rule was the same, and the rule was based upon considerations of justice. And if that was so, there is no reason why similar considerations should not be given effect to in the converse case of a tenant seeking to obtain against one of several joint landlords abatement of rent, though such a case may not be provided for by any express provision of the Tenancy Act applicable to it.
Harington, J.
10. I am of the same opinion. In the absence of any express power given under the Act to a person having a share in a tenancy to exercise the rights which are given by the Act to a tenant, I think that the principle which obtains in the case of a joint-landlord being unable to sue except jointly must obtain. I can see no difference in principle and for that reason I think this appeal must succeed.
