1. This Second Appeal arises out of a claim by the plaintiff that he is entitled to some 55 cents of land out of what was purchased by the 1st defendant in a rent sale held by the zamindar on the footing that these lands also formed part of the pattah lands of defendants Nos. 2 and 3. The plaintiff's main contention was that the lands really belonged to and had all along been in the, possession of defendants Nos. 4 and 5 from whom ha obtained them on transfer, but by some mistake of the zamin authorities the survey numbers relating to the holdings of defendants Nos. 2 and 3 on the one hand and defendants Nos. 4 and 5 on the other have been inserted by mistake in their respective pattahs.
2. There is no scope for the application here of the provisions of Sections 146 and 147 of the Estates Land Act because it is not sought to bind the plaintiff by the result of proceedings taken against defendants Nos. 4 and 5. The trial Court found that the plaintiff's suggestion that the land really belonged to defendants Nos. 4 and 5 though its survey number has been wrongly entered in the pattah of defendants Nos. 2 and 3 had not been made out. In that view of course it was justified in dismissing the plaintiff's suit. But the Appellate Court has come to the conclusion that defendants Nos. 2 and 3 were never entitled to and had never been in possession of the said plot of land but that it had all along been in the possession of defendants Nos. and 5 and their predecessors-in-title till it passed into the possession of the plaintiff some years before the rent sale in pursuance partly of the use fractural mortgage and partly of the sale from defendants Nos. 4 and 5. The learned Subordinate Judge has also found that the survey number of the suit lands had been entered by mistake is the pattah of defendants Nos. 2 and 3 instead of in the pattah tit defendants Nos. 4 and 5, He held that as a matter of law the mere entry of the wrong survey number in the pattah of a ryot will not entitle the landholder to Sell that land when it really belonged to and was in the possession of another tenant. The auction purchaser has filed this second appeal.
3. The evidence in the case is so shabby that one cannot resist the suspicion that the defendants have not placed the whole truth before the Court. The plaintiff became entitled to the land only recently and could speak only to recent events including his own possession. His possession for sometime before the rent sale has been admitted by the defendant's witnesses and no plausible explanation has been attempted to account for that possession. The learned Judge was, therefore, justified in accepting the other evidence adduced on the plaintiff's side that prior to the transfer of possession to the plaintiff the suit land had been in the possession of defendants Nos. 4 and 5 for sometime prior thereto in the possession of the 4th defendant's vendor. Defendants Nos. 2, 3 and 4 are closely related and I am not prepared to hold that the plaintiff must suffer for any unwillingness on the part of the 4th defendant to speak the whole truth. There is also some ground for the suspicion of the learned Subordinate Judge that the rent sale must have been the result of collusion between the village officer and defendants Nos. 1 to 3 taking advantage of the mistakes in the pattah and survey numbers.
4. On the above findings of fact, I do not think the auction purchaser can maintain the purchase merely on the proposition of law that whatever may be the real ownership the entry of a particular survey number in a particular tenant's pattah will justify the landlord in bringing that item to sale even though the land was in the possession of another tenant who was himself a pattahdar under the landlord, merely because the latter had not taken steps to get the pattah rectified. The mistake is one for which the landlord is as much responsible as the tenant. The policy underlying Section 147 of the' Estates Land Act does not warrant the extension of the same by analogy to a case like Ms because in the; case contemplated by Section 147 the landlord may not be aware of the transfer and the law therefore, rightly throws on the transferee the obligation to get himself recognised. But in a case of incorrect entries in the pattah there is reason to insist on the landlord being careful and no reason for throwing the consequences thereof on the tenants especially when we remember that more often than not the tenants may be ignorant. A different principle will put it in the power of unscrupulous village officers to manipulate such mistakes. I am not prepared., therefore, to lay it down as a general proposition of law that the mere fact of a particular survey number being found in the pattah of one tenant and not in the pattah of the tenant who is actually in possession of land will suffice to justify the landholder bringing the property to sale for arrears of rent due by the former tenant. I, therefore, see no re as on to interfere with the decree of the lower Appellate Court and I accordingly dismiss the second appeal with cost's of the 1st respondent. (Leave refused).