P.N. Mookerjee, J.
1. The appellants before me were the defendants in a suit for assessment of fair and equitable rent for the suit land. According to the plaintiffs, they derived title to the suit lands through one Swar-namoyee, their predecessor-in-interest. In the plaint, the case was made that Swarnaraoyee auction-purchased the suit property along with some other plots in the benami of her son Nani Gopal Ganguli. The said auction sale was held in Sep-tember 1904 and it is the case of the plaintiffs that, subsequently, the suit lands were let out to the defendants by Swarnamoyee, but the rent was not assessed. On this allegation, the present suit was brought for assessment of fair and equitable rent.
2. The defence was a denial of the plaintiffs' title on the ground that Nani was not the benamidar of Swarnamoyee, but was the purchaser for himself, and that, with Nani, the defendants' predecessor entered into an agreement for purchase of the suit land and made certain payments thereon, and, thereafter, after Nani's death, upon payment of the balance of the consideration money to Nani's widow Batashi, who was the pro forma defendant in the present suit, they acquired title to the disputed property by purchase.
3. The trial Court, primarily, upon the view that the plaintiffs' claim of title would be hit by sec. 66 of the Code of Civil Procedure, at any rate, dismissed the suit on that ground, although, accepting the plaintiffs' case on the other point, that the defendants were mere settlement-holders from Swarnamoyee and could claim no title by reason of any sale from Batashi on the basis of any agreement for sale with Nani. In other words, the defendants' story, in this respect, was disbelieved by the trial Court. The lower Appellate Court appears to have been of the same opinion on this last question and, according to it also, the defendants were tenants, let in on the disputed land by Swarnamoyee. On the other question, namely, as to the bar under sec. 66 of the Code of Civil Procedure, the lower appellate Court was of the view that, as the sale, in this particular case, was in the year 1904 and as it had been affirmed also in that year and the purchaser went into possession immediately, the present Code of Civil procedure, which came into operation in the year 1908, would not apply to this case and, under Section 317 of the old Code the present suit would not be barred, although it might have been barred, it the new sec. 66 had applied. The lower appellate Court, accordingly, held that the suit was maintainable and the defendants being tenants whose rent had not been assessed, it went into the question of assessment of rent and, having found that Rs. 15/- per annum would be the proper rent for the disputed land, assessed the rent at that figure and also gave the plaintiffs a decree for what it wrongly described as mesne profits at the said rate for three years, prior to the suit, namely, from 1355 to 1357 Aswin, B. S.
4. In this second appeal by the defendants, Mr. Dutt urges that the decision of the learner Court of appeal below, overruling the defence plea of bar under sec. 66 of the Code of Civil Procedure, is wrong and he should have held, in agreement with the learned Munsif, that the present suit is barred under the said section of the Code. In my opinion, there has been a misapprehension of the legal position in this case by both the two courts below, so far as the question of sec. 66 of the Code of Civil Procedure is concerned. Whatever might be the effect of that section and whether it applies or not, one thing is clear on the concurrent findings of the two courts below, namely, that the defendants, or, rather, their predecessor-in-interest, was or were let into the land in suit by Swarnamoyee, who, according to the plaintiffs, was the real purchaser at the auction sale of 1904. The defendants, accordingly, will be estopped from challenging the title of Swarnamoyee under sec. 116 of the Indian Evidence Act. In that view of the matter, no plea, including the plea of bar under sec. 66 of the Code of Civil Procedure (which is always strictly construed), against the plaintiffs' title, who are, admittedly, representatives in interest of Swarnamoyee, can be entertained at the instance of the present defendants, and the present suit cannot be defeated on the ground that it is not maintainable in law under the said Section, This view is supported by the Bench decision of this Court in the case of Md. Emartulla Sircar v. Md. Didar Bux Sircar 24 Cal WN 51 ; AIR 1920 Cal 48 and the broad reason for the view is that, in circumstances aforesaid, no question of title arises as the plaintiff's title is not open to challenge at the instance of the defendant and the said, accordingly, is not, strictly speaking, a suit for declaration of title, at least, in substance.
5. On the other question as to the assessment of rent, no substantial objection could be taken by Mr. Dutt in this Court and the only thing that he argued was that the decree for what the Court of appeal below describes as mesne profits at the rental rate from 1355 to 1357 Aswin, B. S. that is, for three years, prior to the suit, was not tenable in law.
6. There is no substance in this objection, although, I may point out that the use of the term 'mesne profits' is rather inappropriate, as the claim and the decree for the said three years would be really for damages or compensation for use and occupation in the circumstances of this case.
7. Subject only to this modification in phraseology, the decree of the lower Appellate Court will be affirmed. This appeal will, accordingly, fail and it will be dismissed with costs, hearing fee being assessed at one gold mohur.