B.K. Mukherjea, J.
1. This is an appeal against the decision of the District Judge, Khulna, dated 17th August 1938, affirming that of the Munsif, Third Court of that place. Two plaintiffs, one of whom is the appellant before me, commenced the suit out of which this appeal arises for recovery of khas possession of the lands in suit on establishment of their title as under raiyats with rights of occupancy in respect of the same on the basis of a purchase at a rent sale. They also claimed mesne profits. The plaintiffs' case was that the lands in suit appertained to a under-raiyati holding which belonged to Cherajan Bibi and others and they held it under Laban Sheik and his cosharers at a jama of Rs. 6 and odd and the tenants had acquired occupancy rights in the holding by custom. Laban Sheikh and his cosharers sued Cherajan Bibi and others for arrears of rent in respect of this under-raiyati holding for the years 1330 to 1333 B.S. in rent suit No. 191 of 1927, and, having got an ex parte decree put up the under-raiyati holding to sale, and it was purchased by the plaintiffs in May 1929. The sale was confirmed on 29th November 1929, and the plaintiffs seem to have served notices under Section 167, Ben. Ten. Act, upon the defendants who were found to be in possession of the suit lands with a view to annul all interests which they might purport to have in them and as they refused to vacate in spite of these notices, the present suit was instituted.
2. The suit was contested by defendants 6, 7, 9 and 10, who are recorded as under-raiyats of the second degree under Cherajan Bibi and others in khatian No. 208-2 of the C.S. records. Their defence was really of a twofold character. It was first contended that the decree obtained by Sheikh Laban and others in the rent suit No. 191 of 1927 could not have the effect of a rent decree and the sale could not attract the provisions of chap. 14, Ben. Ten. Act. The result was that the plaintiffs simply purchased the right, title, and interest of Cherajan Bibi and others, and as these defendants were recorded as under-tenants under the latter, they could not be ejected. The second point taken was that even if the sale was a rent sale, the notice under Section 167, Ben. Ten. Act, not being served within one year from the date of the confirmation of the sale, it was ineffectual in law to annul the interest, and consequently, the plaintiffs' suit must fail.
3. The trial Court gave effect to both these contentions and dismissed the plaintiffs' suit. On appeal, the learned District Judge differed from the trial Court on the first point, and he was of opinion that the decree had the effect of a rent decree under chap. 14, Ben. Ten. Act, but as the notice under Section 167 was not served within one year from the date of the confirmation of the sale, the lower appellate Court agreed with the Munsif in dismissing the plaintiffs' suit. It is against this decree of dismissal that the present second appeal has been preferred, and I have to consider the propriety of the decision of the lower appellate Court on both these points. The first point is as to whether the plaintiffs got the holding itself by their purchase at a sale in execution of the decree which Laban Sheikh and others obtained against the under-raiyats and, as such, could annul the sub-tenancy of the contesting defendants under the provisions of chap. 14, Ben. Ten. Act. It is not disputed that prior to the passing of the Bengal Act 4 of 1928, a sale of an under-raiyati holding in execution of a decree for rent due in respect thereof could not be held under the special provisions of the Bengal Tenancy Act: vide Munsar Ali v. Arsadulla ('12) 16 CWN 831. The law has been altered by the amending Act of 1928.
4. To find out the exact effect of the changes, it is necessary to advert to some of the relevant provisions of the amending Act of 1928. The first alteration is in regard to the definition of holding as made in Section 3, Clause (5) of the new Act. 'Holding' under the old law meant a parcel or parcels of land held by a raiyat. It now means a parcel or parcels or an undivided share thereof held by a raiyat or an under-raiyat. If we simply read the word 'holding' in this extended sense in Section 159, Ben. Ten. Act, the conclusion, at first sight, seems to be that when an under. raiyati holding is sold in execution of a decree for arrears of rent due in respect of the same, the purchaser acquires the right to annul the incumbrances as laid down in that section. In my opinion, Section 159, Ben. Ten. Act, or for the matter of that all the other provisions of chap. 14, Ben. Ten. Act, must be read along with Section 65, Ben. Ten. Act. As was pointed out by my learned brother Mitter J., in Biswanath Rai v. Manik Sardar ('35) 39 CWN 652 at p. 654, chap. 14, Ben. Ten. Act, simply regulates the procedure and defines the effect of a sale of a tenure or holding but does not state in what cases the tenure or holding (as distinguished from the sale of the right, title and interest of the judgment-debtor) can be sold and by whom; for that purpose reference must be made to Section 65, Ben. Ten. Act. In other words, it is only when the decree for arrears of rent is charged upon the tenure or holding, such arrears can be realised by following the procedure laid down in Chap. 14, Ben. Ten. Act. Chapter 14 'does not purport to enlarge or restrict the right,' but simply provides the machinery for working it out: vide the observations of Sir George Lowndes in Jitendra Nath v. Manmohan Ghose . I am therefore of the opinion that Section 159, Ben. Ten. Act, by itself cannot give the purchaser of an under-raiyati holding at a sale in execution of a decree for rent the right to annul incumbrances as provided for in that section. The purchaser will have this right only if the decree for arrears created a charge under Section 65, Ben. Ten. Act.
5. Now, Section 48G, Clause (2) of the amended Act has extended the application of Section 65 to the holding of an under-raiyat with rights of occupancy, and, as it is not disputed in the present case that Cherajan Bibi and others had occupancy rights in the holding, if the decree obtained by Laban Sheikh and others was passed under the new Act, there can be no doubt that it could be enforced by proceedings in execution as laid down in chap. 14 of the - Act. The fact however is that the decree was obtained before the amending Act 4 of 1928 was passed, and the question arises as to whether, under these circumstances, the plaintiffs could acquire the rights of a purchaser as described in Section 159, Ben. Ten. Act. In my opinion, the answer to this question must be in the negative. Section 48G cannot be said to be retrospective in its operation so as to attract the provisions of Section 65 when the decree for rent was obtained against an under-raiyat when the old law was still in force. To hold otherwise' would be to offend the well-known canon of construction that when the Legislature alters the rights of the parties by taking away old rights or conferring new ones, the enactment would not be retrospective unless the Legislature intended it to be so by clear words or necessary implication.
6. Mr. Chatterji who has argued the case with great thoroughness and ability has argued before me that an application for execution must be regarded as a fresh proceeding and not a continuation of the suit, and, as at the time when the application for execution was made, the new Act was in force, it is the new law that would govern the rights of the parties, and reliance has been placed upon a Full Bench decision of this Court in Deb Narain Dutt v. Narendra Krishna (89) 16 Cal 267 . This argument, in my opinion, does not really assist his client. In the Full Bench case, the right to prefer a claim under the Code of Civil Procedure could not arise till the property was actually attached, and at the time when the attachment was effected, the new law was already passed taking away the right. Here, as I have said above, chap. 14, Ben. Ten. Act, does not purport to create any new rights whatsoever. It simply provides the machinery for enforcing the right created by Section 65, Ben. Ten. Act, and, as, in my opinion, Section 65 is inapplicable to the present case, the provisions of Chap. 14, Ben. Ten. Act, must be held to be inapplicable also. There is no question here of merely altering the procedure keeping the substantive rights of the parties intact which might compel the litigant to enforce his rights according to the new procedure laid down. I am of the opinion therefore that on the first point the decision of the lower appellate Court is not right, and the sale could not have the effect of a rent sale under the provisions of Chap. 14, Ben. Ten. Act. In this view, the other question as to whether the notice under Section 167, Ben. Ten. Act, having been served upon the defendants more than a year after the sale was confirmed, the incumbrances could not be validly annulled does not arise for consideration.
7. I may point out however that on this point, both the Courts below were labouring under a clear misapprehension. Under Section 167, Ben. Ten. Act, the application for annulling the incumbrances has got to be presented to the Court of the revenue officer within one year from the date of the confirmation of the sale or the date on which he first received notice of the incumbrances whichever is the later. The date upon which the notice was actually served upon the defendants is perfectly material, and, in this case, there is no finding whatsoever made by either of the Courts below as to when the application of annulling the incumbrances was presented to the Court in the manner contemplated by Section 167, Ben. Ten. Act. If I had held that the sale was a rent sale, this would have been a matter for a fresh investigation, and I would have sent the case back for consideration of this point, but as I have come to the conclusion that the sale was not a rent sale the question does not really arise.
8. There is one other point however in favour of the plaintiff-appellant which was missed by both the Courts below. The defendants in the present suit are not only the persons who have been recorded as under raiyats under the defendants in the rent suit but the plaintiffs have impleaded the judgment-debtors in the rent suit as parties defendants and also certain other persons who purport to derive their title from the latter. It appears from the settlement records that the superior under-raiyati holding which was recorded in khatian No. 208-1 of the C S. records comprised four settlement plots, namely plots Nos. 346, 347, 538 and 539, whereas the under-raiyati of the second degree held by Wajed Sikdar and others under Cherajan Bibi and others which was recorded in khatian No. 208-2 comprised only two plots, namely C. S. Dags Nos. 346 and 347. The contesting defendants therefore cannot claim to be tenants with regard to O. S. plots Nos. 538 and 539, and if they or any other persons claiming through them are in possession of these lands, they must be held to be trespassers and can be evicted without any notice under Section 167, Ben. Ten. Act. The result therefore is that the appeal is allowed in part. The plaintiffs' title as under, raiyats with rights of occupancy is declared with regard to the four plots, to wit, C. S. plots Nos. 346, 347, 538 and 539 and they will be entitled to get khas possession of O. S. plots Nos. 538 and 539 only, but not of C. S. plots Nos. 346 and 347 in this suit. The appeal is thus allowed in part and the decree of the lower appellate Court modified. The plaintiff will be entitled to half the costs in all the Courts. There will be no costs in favour of the defendants.