Wilson and Beverley, JJ.
1. The plaintiffs in this case sue to recover certain property from which they say they have been dispossessed. Their story is shortly this: That there was a permanent tenure of which Kashi Nath was the tenant; that Kashi Nath died leaving the defendant Goburdhan his son and heir; that Goburdhan sold the tenure, and that by several devolutions, which it is not necessary for us to examine in detail, the whole tenure became vested in the plaintiffs; that subsequently one of the defendants, an 8-anna shareholder in the zamindari interest, brought a rent suit, not against the plaintiffs, but against Goburdhan; that in execution of that decree against Goburdhan he professed to sell the tenure to another defendant; and that in consequence the plaintiffs have been ejected from the property, and hence the suit.
2. The lower Appellate Court has dismissed the suit in this way,--the Subordinate Judge says: ' I think the plaintiffs in this case have no locus standi. The plaintiffs admit that their father once sued the landlord-defendant to register his name on the strength) of the bill of sale of 1269 B.S.' (that is the bill of sale through which the plaintiffs claim) 'executed by the defendant No. 3 ; that suit was dismissed, after which repeated private attempts were made by the plaintiffs or their father to secure the landlord's recognition of their purchase, but they failed,' and so on. And then he says that the plaintiffs, not having obtained registration in the zamindar's sherista as directed by Section 26 of the Bent Act, are not entitled to recover in this suit.
3. In that, it appears to us that the lower Appellate Court has made; a mistake. That section does no doubt require the transferee or inheritor of a tenure to register it in the zamindar's sherista. It appears on the face of the judgment that the plaintiffs or their predecessors in title made attempts to register their transfer. The section also requires the zamindar to register when so called upon. It appears on the face of the judgment that the zamindar did not do so. There is nothing in the terms of any section of the Rent Act saying that if for any reason, whether by the default of the tenant or anybody else, the registration is not effected, the transferee of the tenure shall take no title. On the contrary, there are provisions in the Rent Act which indicate that that cannot be so. For example, the proviso in Section 63 says that an unregistered transferee shall not fee recognized as a person entitled to come in and object to the sale taking place, implying that he has an interest. If the general intention of Section 26 had been that an unregistered transferee should take no title, it would have been unnecessary to insert such a proviso to this section. The law was expressly laid down in the case of Nobin Kishen Mookherjee v. Shib Pershad Pattack 8 W.R. 96. And all the other cases imply the same thing. The case so much retted upon of Sham Chand Coondoo v. Brojo Nath Pal Chowdhry 12 B.L.R. 484 : 21 W.R. 94 clearly does so. That was a suit by an unregistered transferee seeking to establish his right as against a purchaser of the tenure under a decree for arrears of rent. If an unresgistered purchaser prima facie takes no title, that case might have been very quickly disposed of on that ground. Whereas the case was really decided on the construction of the sections with reference to the rights of a purchaser.
4. No doubt an unregistered purchaser does take subject to many disadvantages by reason of the what of registration. One of these is that embodied in the proviso, to which we have just referred, namely, that he cannot come in and object to the sale. A second is that established in the case of Sham Chand Coondoo v. Brojo Nath Pal Chowdhry 12 B.L.R. 484 : 21 W.R. 94 that if a sale takes place in a rent suit brought by and against proper persons, and the sale be of the tenure, the unregistered transferee has no title as against the purchaser. But none of the cases show that an unregistered transferee takes no title, or as the lower Appellate Court expresses it, has no locus standi to bring a suit complaining of an ejectment. On that point we think that the lower Appellate Court is wrong.
5. Then there is another important point, which should be noticed, because it goes to the very root of the case.
6. In the first place, the plaintiff raises this contention: he says that, assuming that the rent suit was brought, and that there was a sale, the person who brought that suit was not a zamindar, but an 8-anna shareholder in the zamindari right, and therefore under Section 64, he could not, in execution of his decree, sell the tenure: all that he could sell would be the rights of the person against whom he recovered his decree, just in the same way as he could sell the rights of that person in an ordinary execution under the Procedure Code in a suit other than a rent suit.
7. Now, the mode in which the first Court dealt with that point is this: It is said that as one of the co-sharer landlords obtained the rent decree, he could not have sold the tenure, but only the right, title and interest of the tenant; and as these are proved to have passed from the tenant by private sale to plaintiffs prior to date of decree, in reality there was no right, title and interest of the tenant which could be sold. The mode in which that was dealt with is this: 'All this seems to me to be exceedingly ingenious, but unfortunately is not to be found in the plaint.'
8. As to some of the points of which the Munsif was speaking, he was no doubt right in saying that they should not be raised at that stage. As to so much as related to the plaintiffs' title he was right in saying that the plaintiff, having alleged one title in the plaint, must not be allowed at the last moment to rely upon another title. But this, about the nature of the rent suit, is a matter not of the plaintiff's title, but of the defendant's title. The plaintiff is not called on to define the nature of his opponent's title. It is for the plaintiff to state his own case. It is for the defendant to state and prove everything which is necessary to the case on which he relies. It was, therefore, for the defendant to allege and to prove what the rent suit was, and what the decree was, and that the sale under the rent decree was of such a nature as to give him priority over the plaintiff. We think, therefore, that the Munsif was wrong in dismissing the matter in that way. Moreover, we think that the contention thus set up by the plaintiff, supposing it to be well founded in fact, is sound in law. The terms of Section 64 are express, and the distinction between the two procedures, the procedure to sell the interest of the tenant and the procedure to sell the tenure, is very clearly pointed out by the Privy Council in the case of Dular Chand Sahu v. Lalla Chabeel Chand L.R. 6 I.A. 47. That was a case in which the plaintiff, who sued, had the whole interest in the zamindari right; and having recovered a decree against the proper person for rent, it was open to him to proceed, if he liked, under Section 59 of the Rent Act, and to sell the tenure. But it was found on examination of the documents that as a fact he had elected hot to proceed to sell the tenure but to sell the interest of the debtor. Accordingly, the title of the purchaser was good only to the extent of the interest of the debtor.
9. The present case is stronger, because it is not the case of a person who had a right to sell the tenure (assuming the facts to be as alleged), but of a person who had no right to sell anything beyond the interest of the debtor. If, therefore, the fact be that the defendant who brought the rent suit was no more than a shareholder in the zamindari rights, he could not sell the tenure. And we think it clear in point of law that, if the plaintiff prove his title, then the purchaser-defendant took no right as against him by the sale.
10. These are the only points on which we think it necessary to express our opinion.
11. The case must go back to the lower Appellate Court. There is no express finding that what was sold was sold in execution of a decree obtained by an 8-anna sharer. It is so stated in the plaint and certainly by implication in 'one at least of the written statements. And it is stated that the evidence is all one way, but there is no finding upon it; therefore, the facts must be found by the lower Appellate Court. The lower Appellate Court will then consider the case on the merits-that is to say, it will find whether the plaintiff has established his title either under the alleged transfer to him, or by having been recognized as tenant by receipt of rent or otherwise, or by the length of his occupation or on any other ground. And if it be that the sale which took place, and at which the defendant purchased, was a sale in a suit by an 8-anna sharer, then as a matter of law the title of the plaintiff will prevail.
12. The appellant will have the costs of this appeal. The costs in, the Court below will be dealt with by the Court below.