A decree in order to operate as a rent decree should be made against all parties interested in the tenure.

Ramaswami, J.

1. The only question argued in this appeal is whether the decree obtained by defendant 8 in Rent Suit no. 809 of 1940-41 operated as a rent decree or as a money decree.

2. On behalf of the appellant, Mr. J.M. Ghosh properly conceded that if it be held that the decree had the force of a money decree this appeal must fail. If not, it is manifest that this appeal should succeed.

3. The appeal had been remanded by the High Court to the learned Subordinate Judge for rehearing the parties and

"after excluding Ex. 8, a judgment, from evidence send up a clear finding to this Court by making clear references to and discussing the relevant evidence which justifies him in holding that the decree in question was a rent decree or a money decree."

The learned Subordinate Judge has now examined the evidence afresh and submitted a finding that the decree in question operated as a money decree and not as a rent decree. Learned counsel for the appellant impeached this finding on the ground that there was no evidence in support thereof. In my opinion, this argument is not tenable. It it true that the judgment or the decree of the rent suit was not exhibited on behalf of the parties. But as the learned Sub-ordinate Judge remarks the plaintiff definitely alleged in para. 8 of the plaint that

"defendant 8 had instituted a rent suit against defendant 1 only without impleading defendant 7 and other persons who were interested in the tenure."

There is no specific denial of this fact by the defendant in his written statement. On the contrary, in para. 11 thereof the defendant admitted that he had instituted in good faith the rent suit against defendant l by rightly impleading him as defendant. It was then contended for the appellant that though defendant 1 had made a gift of a portion of the land in favour of his wife he should nevertheless be deemed to have represented her in the rent suit. But there is no evidence to suggest that the property which was granted to defendant 7 was a joint family property of which defendant 1 should have been the karta. It should be noted that the deed of gift was executed on 6th February 1937 long before the rent suit was instituted. Since the appellant failed to implead defendant 7 in the rent suit it is manifest that the decree in question had not tbe character of a rent decree. The learned Subordinate Judge has found that Babuni and Churo were also interested in the tenure and ought to have been impleaded in the rent suits. Learned counsel for the appellant contended that the documents by which they acquired the interest were not produced in proof of the transactions. The learned Subordinate Judge, however, accepted the oral evidence on this point and found that Churo and Babuni had also interest on an utter absence of evidence and since it is essentially a question of fact the finding cannot be impeached in second appeal. The principle can not be disputed that a decree in order to operate as a rent decree should be made against all parties interested in tbe tenure. In Jagdishwar Dayal Singh V/s. Dwarka Singh, 12 Pat. 626 (A. I. R. (20) 1933 P. c. 122) the Judicial Committee held that in order to justify a sale of a tenure under Sec.208, Chota Nagpur Tenancy Act, all parties interested in the tenure must be joined as defendants in the rent suit, or be sufficiently represented. Where all the parties are not joined or represented Sec.211 does not apply, and the revenue Court has no jurisdiction to order a sale; consequently Sec.214 does not preclude the civil Court from entertaining a suit to set it aside. The Judicial Committee stated that the circumstance that a recorded tenure-holder has not got her name entered in the landlords sherista, nor paid rent, nor been recognised by him as a tenure-holder, was not such as to justify the landlord in gelling if she has not been joined or represented in the rent suit.

4. For these reasons, therefore, I hold that this appeal fails and should be dismissed