1. This is an appeal by the plaintiff against a decree of the Additional District Judge of Khulna reversing the decision of the Munsif of Bagerhat. The suit out of which this appeal arises was for a declaration that the title of the plaintiff and the pro-forma defendant 9 to the property in suit has not been affected by a rent sale held in April 1921.
2. The facts are these : The plaintiff as well as defendant 9 were the owners of two nim howlas. These nim howlas were let out in ijara by the owners by a deed, dated 29th Jaishta 1319, by which the father of defendant 7 named Rahimulla Akan was granted a lease for eight years of these tenures which was to end in Chaitra 1326. Rahimulla sold his pattai right to defendant 1 by a kobala dated 1st Asar 1319, (Ex. 3). It is evident that by virtue of his purchase defendant 1 went into possession and paid rent to the superior landlords for two years. There was a condition in the patta of Rahimulla that he would pay the rent due to the superior landlords on behalf of his lessors, the plaintiff and defendant 9, on account of the two nim howlas. Defendant 1, as already stated, paid rent for two years of his purchase of the ijara rights but he defaulted in the payment of rent for the years 1321 to 1324. Thereupon,, the landlords brought two rent suits-against their tenants, that is, the plaintiff and defendant 9, and obtained two ex-parte rent decrees. In execution of those decrees the nim howlas were sold and they were purchased by defendant 1 himself. After the sale, the present plaintiffs presented an application for setting it aside on the ground of irregularity and other matters which fall within order 21, Rule 90, Civil P.C. That application was rejected.
3. After failing to have the sale set aside, the plaintiff has brought this present suit for a declaration that his right as well as that of defendant 9 in the nim howlas have not been affected by the auction sale. The plaintiff alleged that after the expiry of the ijara in 1326, he and his co-sharers got into possession of the property and they are still in possession. Defendant 1 denied his purchase of the ijara right from Rahimulla, or that he was under an obligation to pay the rent due to the superior landlords on behalf of the plaintiff and his co-sharers. The learned Munsif decided the facts in favour of the plaintiff. He held upon the evidence adduced, not only by the plaintiff but also by defendant 1 himself, that defendant 1 did actually purchase the ijara interest of Rahimulla which he had got from the plaintiff and his co-sharer. He also found that defendant 1 was under an obligation to pay the rent to the superior landlords on behalf of his vendor's lessors and, as a matter of fact, he did pay the rent for two years. Afterwards he made default as alleged by the plaintiff and purchased the property himself at the execution sale.
4. Upon these findings, the Munsif came to the conclusion that defendant 1 constituted himself as a trustee for the plaintiff and his co-sharer with regard; to the property purchased by him and had acquired no independent title himself. This view of the law can hardly be contested, because defendant 1 being under an obligation to pay the rent of the superior landlords cannot acquire a right in himself by making default in the discharge of his own obligation. The Munsif also found that although defendant 1 by virtue of his purchase took symbolical possession, the actual possession of the tenures in question is with the plaintiff and his co-sharers and he discusses the evidence in detail leading to that conclusion. He, therefore, made a decree in favour of the plaintiff and declared the nim howla rights of the plaintiff and the pro-forma defendant 9 in the lands in suit and he further declared that their title was unaffected by the auction-purchase of the defendant 1. Defendant 1 appealed against that decree. The Additional District Judge has reversed the decision of the Munsif solely upon the ground that this suit is not maintainable as it amounts to what is prohibited by the Civil Procedure Code, that is to say, a suit under Order 21, Rule 92, Sub-rule (3) which provides that no suit to set aside an order made under Rule 92 shall be brought by any person against whom such order is made. The Additional District Judge seems to us to be clearly in error in so holding.
5. The purpose of an application under Order 21, Rule 90 is quite different. In the present suit, no decree can be made setting aside the sale for any irregularity or on any other ground mentioned in Order 21, Rule 90, Civil P.C. The present suit proceeds rather upon the ground that the sale is a good one, but defendant 1 holds the property for the benefit of his lessors and so far as the plaintiff and his co-sharers on the one hand and defendant 1 on the other are concerned, the title to the property remains unaffected. It is quit true that the proper prayer in this case should have been to ask that defendant 1 be directed to execute a conveyance of the property in favour of the plaintiff and his co-sharers. But under the circumstance that defendant 1 has not been able to get into possession and the tenures are actually in the possession of the plaintiff and his co-sharers, no serious harm has been done for the prayer in the plaint not having been made in the proper form. The learned Judge, however, did not find the facts in the case, that is to say, he did not determine the issues whether defendant 1 made default in payment of the rent to the superior landlord while under an obligation to pay it by reason of the covenant in the ijara patta, and whether he had actually purchased the ijara interest of Bahimulla. We have been led through the evidence by the learned advocate on behalf of defendant 1 and we are satisfied that the estimate of the evidence by the Munsif is quite correct and the facts found by him which have not been upset by the District Judge are unassailable. There is only one passage in the Munsif's judgment with which we are unable to agree, that is, where he speaks about the mortgage-decree obtained by defendant 2, who is the son of defendant 1 against defendant 9 and his daughters in mortgage suit No. 256 of 1920. The learned Munsif's view that the mortgage-decree has been wiped out by the rent sale is erroneous and it was absolutely unnecessary for him to express that opinion in the present case. The view with regard to the main question decided by the Munsif is accepted by us.
6. The result is that the judgment and decree of the lower appellate Court are set aside and that of the Munsif restored with this modification that defendant 1 alone will be liable for costs in all the Courts.