1. This appeal arises out of a suit brought by plaintiffs-respondents to recover, possession of a two-thirds share of certain rent-paying lands on the allegation that the plaintiffs were entitled to a one-third share by inheritance from the last recorded tenant, and to another one-third share by purchase from one of his heirs; that the defendants Nos. 2 and 3 were entitled to the remaining one-third share; that the plaintiffs and the defendants Nos. 2 and 3 had been paying rent to the landlords and obtaining Separate rent receipts for some years; that subsequently, misunderstandings having arisen between the plaintiffs and the defendants Nos. 2 and 3, these latter colluded with the landlords, and caused a rent suit in respect of the entire Jama, to be brought against them and allowed a decree to pass, in execution of which the lands were sold and purchased by the defendant No. 1.
2. The defendant No. 1 denied the plaintiffs' right, and contended that the rent suit was brought by the landlords against the person who was the Sarbarakar, or manager, of the jama, and in execution of the decree obtained in that suit, the lands were sold and purchased in good faith by the defendant No. 1, The Courts below have held that the execution sale did not affect the rights of the plaintiffs, and they have accordingly given the plaintiffs a decree. In second appeal it is contended, on behalf of the defendant No. 1, firstly, that the suit could not proceed in the absence of the landlords; and secondly, that the Courts below were wrong in holding that the sale in execution of the rent decree obtained by the landlords could not pass the whole tenure, but passed merely the right, title, and interest of the judgment-debtor.
3. As to the first point, we think it sufficient to say that as the plaintiffs seek to recover possession of their share of the lands in dispute upon establishment of their right, and have made the persons in possession of the land, who claimed title to the land as against the plaintiffs, parties to the suit, there could be no objection to the suit proceeding, merely because the landlords, at whose instance the defendant No. 1 made his purchase, had not been added as parties.
4. In support of the second contention it is argued that the landlords were not bound to recognize the plaintiffs as the persons entitled to the jama, because it is an occupancy holding, and in respect of an occupancy holding, neither the heir of the last tenant, nor the transferee from in occupancy raiyat, can compel the landlord to recognise him and register his name; and the cases of Ambika Pershad v. Chowdhry Keshri Sahai (1897) L.R., 24 Cal., 642, and Kuldip Singh v. Gillanders Arbuthnot & Co. (1899) L.R., 26 Cal., 615, are relied upon.
5. We are of opinion that this contention is not sound. In the first place, he argument assumes that the jama is an occupancy holding, and not a enure, as it has been described in the sale certificate, which is the document upon which the defendant No. 1 must rely. If it is a tenure, the learned vakil or the appellant very properly concedes that an heir as well as a transferee, even though of a part, would be entitled to compel the landlord to recognize him under Sections 15 and 17 of the Bengal Tenancy Act.
6. We are of opinion that no objection having been raised by the defence as to the plaintiffs not being entitled to claim any recognition by reason of the jama being an occupancy holding, and the defendant's own title deeds showing that it is a tenure and not an occupancy holding, the question sought to be raised before us does not arise. But even if it could be said that the jama was an occupancy holding, we do not think that the contention is correct so an as it relates to the right of an heir of an occupancy raiyat to claim recognition by the landlord. Such a contention would, in our opinion, be opposed to the provisions of Section 26 of the Tenancy Act, by which the right of occupancy is expressly declared to be heritable. And if the plaintiffs, granting that the jama was only an occupancy holding, were entitled to claim recognition as heirs of the last recorded tenant, the landlords, in bringing the rent suit in Question ignoring them, acted in excess of their right, and the decree obtained in such a suit and the sale held in execution thereof cannot affect the right of the plaintiffs.
7. But there is something more in the facts found by the Court below, which would go to show that the decree and the sale in execution thereof cannot be held to have the effect that is sought to be attached to them. It is found that upon the death of the last recorded tenant none of his heirs had his name recorded in the landlord's office; and that they held the land and went on paying the rent, and obtaining separate rent receipts for some years until recently, when for reasons best known to the landlords a rent suit was brought against two of them only who represented a one-third interest of the original recorded tenant. The question is whether after having chosen to accept rent from the plaintiffs and the defendants Nos. 2 and 3, the landlords had a right to ignore the former and proceed only against the latter. We are of opinion that the landlords had no such right.
8. Some reliance was placed upon the case of Nitayi Behari Saha Paramanick v. Hari Govinda Saha (1899) I.L.R., 26 Cal., 677, as showing that the execution sale in this case ought to be held to have passed the entire tenure; but that case is clearly distinguishable from the present, as there the rent suit was brought against the registered tenant, though he was not the sole heir of the original tenant, and the fasts found were that 'the position of affairs for many years was for the defendants Nos. 3 and 4 to sue the defendant No. 1 alone for the rent and for defendant No. 1 to realize from the plaintiffs the amount payable by them.'
9. We are of opinion that, upon the facts found, the view taken by the Courts below in this case was right, and the decree appealed from must be confirmed and this appeal dismissed with costs.