The judgment emphasizes the importance of establishing a valid landlord and tenant relationship and the relevance of conflicting claims to title in determining the outcome of a rent dispute.

JUDGMENT

Mukerji, J. - In the suit out of which this appeal arises plaintiffs claim rent from the defendants Nos. 1 to 4 for their 8 1/2 annas-share of a Nim Howla which is subordinate in the remaining 7 1/2 annas-share to a Nim Osat taluk belonging to the defendant No. 5 and in the said 8 1/2 as share to a pattan miras ijara held by the plaintiffs as darpattan miras ijara. The defendants Nos. 1 to 4 contested the suit alleging that the darpattan miras ijara was fictitious and fraudulent and there was no relationship of landlord and tenant as between the plaintiffs and themselves. The defendant No. 5 also challenged the bona fide character of the darpattan miras ijara, denied that the plaintiffs acquired any rights under it, and averred that he, having purchased the pattan miras ijara in execution of a decree for arrears of rent thereof, he has become the landlord of the defendants Nos. 1 to 4 to the extent of 'the 18 annas share.

2. The suit was dismissed by the Court of first instance, but on appeal the learned Subordinate Judge decreed the same in favour of the plaintiffs.

3. The learned Subordinate Judge held agreeing with the trial Court that the plaintiffs darpattan miras ijara was a fraudulent and fictitious tenancy created by the holder of the pattan miras ijara when the latter foresaw that her properties could not be saved as a large amount of arrears of rent had accrued therefor and the document was a benami one created to serve its a protection as against such consequences. He held further that the plaintiffs were assignees from the landlords of the defendants Nos. 1 to 4 and there was no contract between the plaintiffs and the said defendants and the latter were not inducted on the land by the plaintiff and therefore no estoppel arose on that ground. He, however, further observed as follows: "When Biseswar Ray Choudhuri (meaning the defendant No. 5) brought a rent suit against him (meaning the tenant defendants or their predecessor), he set up the present plaintiffs' title and also produced rent receipts purporting to have been granted by them. It may be that he entered into this false defence at the instigation of the plaintiffs, but he went much further and produced dakhilas in support of his plea. It is the liability to pay rent which establishes the relation of landlord and tenant, but in the case of this defendant actual payment of rent was made and acknowledged. I think by this conduct this defendant did attorn to the plaintiffs and it is no longer competent to him to deny this title."

4. In my judgment this decision cannot be supported on any conceivable principle. It awards the plaintiffs a decree for rent after an adjudication held in the presence of and on contest with the defendant: No. 5 in which it has been found that the plaintiffs have no title; it ignores the presence of the defendant No. 5 in whose presence a decree for rent cannot be passed on the finding that the Court arrived at. It proceeds to make the defendants Nos. 1 to 4 liable on the erroneous supposition that mere payment of rent, no matter under what circumstances the same was done, amounts to attornment and establishes the relationship of landlord and tenant.

5. Learned vakil appearing for the respondents has urged that the present appeal does not lie in view of the provisions of Section 153 of the Bengal Tenancy Act. I am clearly of opinion that the decree in plaintiff 's favour has decided a question relating to title to land and to some interest in land as between the plaintiffs and the defendant No. 5 who have conflicting claims thereto and, therefore, this objection of the respondents must fail. In fact, the position is much stronger here than it was in the case of Mahommad Gauhar Ali v. Samiruddin Sheikh (1913) 18 C.W.N. 33 in which the tenant-defendant pleaded that; the lease granted by the alleged superior landlord in favour of the plaintiff therein was invalid, and the said superior landlord, though a party to the suit, did not cont