Walsh, J.:— After briefly stating the facts, thus continued:—
Primâ facie the suit was bad under section 194 of the Tenancy Act, which provides the general rule of procedure familiar in such cases to English lawyers, that co-sharers in any right, title or interest shall do any act conjointly, unless they have appointed an agent to act on behalf of all of them, and the defendant? pleaded, in my judgement, and in that of the District Judge, quite rightly, that the claim was barred by section 194. The language was not apt, because the objection is one well-known to English pleaders as a plea in abatement, not a plea in bar, that is to say it is an objection to the success of the suit as the record stands, but not a fatal objection, as the District Judge points-out in his judgement, but one which may be cured by the proper proceedings. When the objection is raised, it is open to the plaintiff either to join his other co-sharers as plaintiffs, which he is entitled to do as of right, by offering them an indemnity, or to make them defendants; but if the real fact is, as frequently happens, that he is either obstinate, or afraid of meeting them in fair fight, he prefers not to do so, but to trust to the chances of success before an indifferent court against a defendant who has not the same materials for fighting an issue on the merits. If he does that, he is, if he comes before a court which understands the case, hoist by his own petard, and the suit must fail.
In this case he seeks to avoid the effect of the rule laid down in section 194, and this is the main point which has been argued on his behalf in appeal, by relying upon a special contract as mentioned in sub-section (2) of the same section. In a court of law which dealt with these matters strictly, he would have to plead such a special contract. It was not pleaded and unfortunately no issue on the subject was framed. An issue certainly ought to be framed because it is a special matter taking the case out of a statutory provision which would certainly prevail if the special matter pleaded were not found in favour of the plaintiff. As a matter of fact, so far as I understand the matter, this special contract is not one which comes within the section at all. One can hardly expect an Assistant Collector to pay much attention to pleadings, and possibly not to the correct legal phraseology when he comes to frame his issues, but one can at least expect him to read the section which he is supposed to be applying to the facts of the case. In the same paragraph in which he states that the plaintiff had been collecting the whole rent with regard to the “khatas” in the suit during past years, he goes on to say that it is evident that the plaintiff is entitled to sue alone under special contract. The special contract provided by sub-section (2) of section 194 has nothing whatever to do with the right of a plaintiff to sue for the whole rent, and is quite irrelevant, as the Assistant Collector would have seen if he had troubled to read the section which he was apparently applying. The general rule being that the plaintiff cannot sue alone for his share, sub-section (2) allows him to do so if there is a special contract by which a co-sharer in an undivided property is entitled to receive separately his share of the rent payable by a tenant.
In my view Mr. Girdhari Lal Agarwala is right in saying that the tenant must have notice of such special contract, because it is difficult to see how he is to know anything about his share of the rent payable by him, unless the subject-matter of the special contract is communicated to him. The learned Judge apparently treated this point with contempt and I am not surprised. He certainly found facts inconsistent with the existence of the special, contract, but he did not actually draw attention to what I myself think is the answer to the plaintiff's reply.
The Assistant Collector seems also to have treated the provisions of the wajib-ul-arz with a certain amount of indifference, because there is a fundamental inconsistency between the view which he has taken and that taken by the District Judge. The Assistant Collector says, “the wajib-ul-arz supports the special contract.” While I do not profess to understand what this means, I infer that the Assistant Collector thought that the wajib-ul-arz gave the plaintiff alone the right to collect the whole rent. If this is what he thought, lie must have been mistaken, because the District Judge says that under the Wajib-ul-arz, all the mutawallis are entitled to collect rents, which appears to me to be a totally different interpretation.
The result, therefore, is that the plaintiff's suit is defective, that the plaintiff has deliberately refrained from applying the necessary remedy to cure what is otherwise a fatal defect, and having set up a special reply to the defect that reply has failed, and there is nothing left for him to fall back upon. The District Judge finds that the suit is not a bonâ fide one but has been brought apparently in an attempt by the plaintiff to get a decision favourable to himself against a tenant in the dispute which is going on between himself and his co-mutawalli. I agree with the judgement of the District Judge.
I might add that a further point was argued by the appellant that there was res judicata, but I am content to say with regard to that I am satisfied that it is not res judicata. The appeal must be dismissed with costs.
Ashworth, J.:— The plaintiff is suing for the whole amount due from the defendants tenants in respect of a holding, although admittedly there are other persons besides himself who are co-sharers in the holding as proprietors. Section 194 precludes such a suit by one co-sharer, except in two cases. One case is where the co-sharer sues as an agent appointed on behalf of all the co-sharers, the other case is where there is a local custom or special contract entitling one co-sharer to receive separately his share of the rent payable by a tenant. The second case has no application to the present suit, inasmuch as the suit is not by the plaintiff merely for his share but for the whole rent due to all the co-sharers. The first case is also not applicable because the plaintiff does not sue as agent on behalf of the co-sharers. He appears to me, on the strength of an agreement with the other co-sharers, to have sued as entitled to the rent in his own right, whereas under that agreement, at the most, he was only entitled to sue as agent for all the co-sharers.
It has been urged that because the defendants did not raise the plea, in two previous similar suits, that the plaintiff was not entitled to sue for recovering the whole rent from the defendants, therefore in some way he is debarred by the rule of res judicata from now raising that point. In my opinion where the forbids a certain thing being done in a suit, no amount of failure by a defendant in previous suits to plead the positive bar created by legislature will prevent its being taken up in a subsequent suit, and this is what the District Judge said in his judgement.
For the above reasons I concur in the finding and would dismiss the appeal.
Appeal dismissed.