JUDGMENT Prinsep, J. - The Plaintiffs as owners of an undivided share in certain properties held jointly with another sue for arrears of rent on their share and they also sue for assessment of rent on lands found on measurement to be in excess of the lands on which rent was admitted in a kabuliyat executed by the Defendants to be payable to them in respect of their share. As Plaintiffs' co sharer is no party to this suit, the matter for determination is whether this suit is maintainable. The lower Appellate Court has dismissed the suit on that ground and the learned Judges who heard the second appeal have differed in this respect. Mr. Justice Geidt has held that a suit for assessment of rent on excess lauds in respect of his share could not be brought by a co-sharer because it would be contrary to sec. 188 of the Bengal Tenancy Act. Mr. Justice Chose, on the other hand, has held that as this was a suit on a kabuliyat executed by the Defendants' predecessor separately with the Plaint ill's admitting their right to a separate rent in a specified sum and also admitting their right to additional rent should the lands on measurement be found in excess of those stated in the lease, this suit is properly brought without making the co-sharer landlord a party. I do not propose to consider the arguments raised before those learned Judges and before me whether in the terms of the Bengal Tenancy Act the holding of the Defendants under the kabuliyat and that law became a separate holding because in my opinion that question is irrelevant. This suit is on a kabuliyat executed by the Defendants' predecessor in which the right of the Plaintiffs to certain rent was admitted and his right to additional rent for lands found on measurement to be in excess of the area stated was also admitted. The right of the Plaintiffs and the liability of the Defendants were distinctly set out as the basis of the agreement between the parties without any reference to the right of any other co-sharer landlord. Ordinarily such a suit would lie. The right is given to the Plaintiffs by the kabuliyat and it is on the kabuliyat that this suit has been brought. The question is whether the right so conferred is affected by the Bengal Tenancy Act. Ordinarily such a suit would lie. The right is given to the Plaintiffs by the kabuliyat and it is on the kabuliyat that this suit has been brought. The question is whether the right so conferred is affected by the Bengal Tenancy Act. Sec. 188 of that Act is relied upon as a bar to the suit. It declares that when two or more persons are joint landlords anything which the landlord is under that Act required or authorized to do, must be done either by both or all those persons acting together or by an agent authorised to act on behalf of both or all of them. Sec. 52, no doubt, declares that every tenant shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him and it further declares on what considerations the Court shall determine the area for which rent has been previously payable and how it shall assess such lauds. So far therefore the law declares a right in the landlord and it declares how the Court shall proceed to determine that right. It may therefore be held that, as this is something which the landlord is under the Act authorised to do, it can be done as provided by sec. 188 of the Bengal Tenancy Act only by all the landlords conjointly if there is more than one landlord. Dees this prohibit the parties from contracting that the right to assess rent on excess lands shall be exercised by one of the landlords ? What is there to prevent the parties as in this case so contracting ? The Plaintiffs may justly say that unless the Defendant tenant had made the agreement set out in the kabuliyat they would not as cosharer landlords have leased to the Defendant and that the Defendant is consequently bound by their kabuliyat. The Plaintiffs do not sue under the general right declared by sec. 52 to be with a landlord to assess rent on excess lands but on the kabuliyat under which the right to assess such rent on their specific share was accepted by the Defendants. Sec. 188, in my opinion, does not affect this right unless the right to make such an agreement is otherwise forbidden by the Bengal Tenancy Act. 52 to be with a landlord to assess rent on excess lands but on the kabuliyat under which the right to assess such rent on their specific share was accepted by the Defendants. Sec. 188, in my opinion, does not affect this right unless the right to make such an agreement is otherwise forbidden by the Bengal Tenancy Act. Sec. 178 is the only section which deals with the full action of landlords and tenants in the matter of contract, and it does not refer to such a matter as that under consideration. We are not called upon to consider what is the rent payable on the entire holding. 2. In this case we find that the Defendant has agreed to pay a certain rent to the Plaintiffs on this share and has also agreed to pay additional rent for any lands found on measurement to be in excess of the area stated in the kabuliyat executed by him. What the entire rent including that payable to another landlord may be is immaterial. The question is what rent shall Defendant pay to the Plaintiffs over and above the rent which he has agreed to pay to them separately in consequence of excess lauds being found on measurement. I can see no reason why such a suit cannot be brought by the Plaintiffs alone. 3. I have had some doubt whether this view of the law is not contrary to that expressed in Baidya Nath De Sarkar v. Jhin 2 C.W.N. 44 : s. c. I. L. R. 25 Cal. 917 (1897), and whether for that reason this should not be referred to a Full Bench. I think, however, that this case is distinguishable. It should be read with Panchanan Banerjee v. Raj Kumar Guha I. L. R. 19 Cal. 610 (1892), Macpherson, J. being one of the learned Judges in both cases. It seems to me that so read this case proceeded on the fact that as the kabuliyat relied upon by the co-sharer Plaintiff had not been acted upon in regard to the separate payment of rent to him ; no separate rights had been created under it on which the suit could be brought. This was expressly the ground of the judgment in Panchanan Banerjee's case. The case of Baidya Nath De Sarkar is therefore distinguishable from the present case. This was expressly the ground of the judgment in Panchanan Banerjee's case. The case of Baidya Nath De Sarkar is therefore distinguishable from the present case. I observe too that Banerjee, J., was the other Judge in Panchanan Banerjee's case and that in his judgment the case of Hurry Churn Bose v. Ranjit Singh 1 C. W. N. 521 : s. c. I. L. R. 25 Cal. 917 (1896) was decided. That case is not in point. On these grounds I agree with Mr. Justice Ghose that this suit is maintainable and that it should be remanded to the lower Appellate Court to determine what is the area of the excess lands and what is rent payable thereon to the Plaintiffs. The Plaintiffs are entitled to the costs of this appeal.