Ghose and Gordon, JJ.
1. We think that the Court below in this case has arrived at a proper conclusion.
2. The whole question discussed before us by the learned vakil for the appellants is as to the effect of the sale held by the Collector in execution of a decree under Act X of 1859 for cesses against certain of the owners of the tenure in respect of which the cesses were due, that is to say, whether it was a sale of the tenure itself, or simply the right, title and interest of the persons against whom the said decree had been obtained.
3. The contention of the appellant depends entirely upon the construction to be put upon Section 47 of Bengal Act IX of 1880. That section runs thus: Every holder of an estate or tenure to whom any sum may be payable under the provisions of this Act may recover the same with interest at the rate of twelve and half per centum per annum in the same manner and under the same penalties as if the same were arrears of rent due to him.'
4. It has been contended that when the Legislature says that the cess may be recovered in the same manner and under the same penalties as if the same wore arrears of rent due to the landlord, it means that the same incidents which attach to, and follow upon, a sale for arrears of rent for which the tenure itself is liable to be sold, equally attach to a sale for cesses, and that, therefore, the sale at which the defendants-appellants purchased the property conveyed to them the whole tenure, and not simply the right, title and interest of the particular individuals against whom the decree for cesses had been obtained.
5. We are, however, unable to accept this argument as correct. We think that, although the procedure for the realization of cesses may be the same as the procedure laid down for the realization of rent due upon the tenure, yet it does not necessarily follow that the effect of a sale for cesses should be the same as that of a sale for arrears of rent for which the tenure itself is liable to be sold under Section 105 of Act X of 1859. We observe that this is the view that was substantially adopted by a Division Bench of this Court in the case of Umachurn Bag v. Ajadaunissa Bibee I.L.R. 12 Cal. 430 where the learned Judges had, amongst other matters, to construe the meaning of Section 25, Act X of 1871, the language of which (so far as the question we are now dealing with is concerned) is substantially the same as that of Section 47 of Bengal Act IX of 1880.
6. We think that what the defendants-appellants have purchased in this case is, not the tenure itself, but simply the right, title and interest of the particular individuals against whom the decree for cesses had been obtained.
7. It has been found by the Court below that the plaintiffs are entitled to a 9-anna share of the tenure, and no attempt has been made before us to question the finding of the lower Court in that respect.
8. It follows, therefore, that the decree of the lower Court should be affirmed and this appeal dismissed with costs. The Maharajah is entitled to separate costs.