Kali Chandra Singh And Anr. vs Rajkishore Bhuddro on 13 May, 1885

Calcutta High Court
Kali Chandra Singh And Anr. vs Rajkishore Bhuddro on 13 May, 1885
Equivalent citations: (1885) ILR 11 Cal 615
Author: Field
Bench: Field, Grant


Field, J.

1. The question in this case is whether a co-sharer is entitled to maintain a suit for enhancement of his share of the rent, which, according to his allegation, was separately collected by him. We will assume for the purposes of our decision in this case that the share of the rent was, in this particular case, separately collected. The Courts below have held that such a suit is not maintainable. It has been pressed upon us by the learned vakil that the decision of the Courts below is wrong upon the authorities. He first pressed upon us the decision of the Full Bench in the case of Chuni Singh v. Hera Mahto I.L.R. 7 Cal. 633. We think that the only observation necessary to make with reference to this case is that the very question we have now to decide was referred to a Full Bench; but was not decided, because, according to the opinion of the majority of the Court, this point did not arise in that case. Then the learned vakil relied upon the case of Bidhu Bhusun Basu v. Kamaraddi Mundul I.L.R. 9 Cal. 864 but in that case this point was not decided; the point decided was, whether the notice of enhancement was good. “The question we have to decide in second appeal is,” said Cunningham, J., “whether this notice was good. This question has, in our opinion, been decided in the affirmative by the observations of the Chief Justice in the Full Bench case of Chuni Singh v. Hera Mahto. We understand the meaning of the Chief Justice to be that a suit by a portion of the co-sharers for rent at an enhanced rate may be brought, provided the other co-sharers are joined in the suit either as plaintiff’s or defendants; and that, in such a case, notice may be duly given by that portion of the co-sharers by which the suit is instituted.”

2. On the other hand, there is more than one decision of this Court, in which it has been decided that such a suit cannot be maintained. In the Full Bench decision in the case of Guni Mahomed v. Moran I.L.R. 4 Cal. 96 the learned Chief Justice, after pointing out that a suit by one co-sharer for a kabuliat would not lie, proceeded as follows: “The right of one co-sharer to enhance the rent of his share separately must be governed by the same principle as his right to a kabuliat.”

3. Then in the case of Bharrut Chunder Roy v. Kally Das Dey I.L.R. 5 Cal. 574 it was held that one co-sharer, even if he made all the other co-sharers parties to the suit, cannot sue for separate rent. I may also refer to the case of Jogender Chunder Ghose v. Hurrish Chunder Chattopadhya 10 C.L.R. 331 in which, however, the other co-sharers were not made parties. I may observe that a similar view has been taken by the Bombay High Court in the case of Balaji Baikaji Pinge v. Gopal Bin Raghu Kuli I.L.R. 3 Bom. 23.

4. We, therefore, think that the point in question is concluded by authority, and unless we were prepared to dissent from the decisions of this Court, we would not be justified in referring the question to a Full Bench, as we have been asked to do. Speaking for myself, I am not prepared to dissent from the decisions to which I have referred. It is contended that if all the co-sharers are made parties to the suit, no injustice can be done to any of the parties, and the observations of the Chief Justice in the Full Bench decision in Chuni Singh v. Hera Mahto were pressed upon us. It may be observed that, although all the co-sharers have been made parties (defendants) in the present case, there is no allegation that they refused to join as co-plaintiffs. But can full justice be done, even if all the co-sharers are made parties to such a suit, i.e., a suit brought to enhance not the whole rent, but a fractional share of it? The Court could only decide upon a fractional enhancement; the other co-sharers are presumably not interested in that fraction; and so far as regards the other sharers and the shares belonging to them, upon the question of enhancement, the Court could not only not do full justice, but could absolutely do nothing. It would be competent to each of these sharers to bring afterwards against the tenant similar separate suits for the enhancement of each of these shares of rent. Such a multiplicity of suits would be harassing to the tenant in the highest degree. It has been held that a suit to set aside the sale of a putni taluk as regards a share only is not maintainable by a single shareholder; but that the suit must be by all the shareholders to set aside the sale as regards the entire taluk. A similar decision was given when five lessees of a Government estate brought separate suits to set aside the sale of that estate for arrears of Government revenue, and there are in the books numerous other cases to show that a suit of this kind, affecting only a fraction of the interest belonging to a number of persons, cannot be maintained unless two conditions are complied with, namely, first, that all the parties interested are before the Court; and, secondly, that the whole of the subject-matter can be affected by the decree so as to prevent multiplicity of suits.

5. We are, therefore, of opinion that the appeal must be dismissed with costs.

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