1. This appeal in which the plaintiff is the appellant arises out of a suit for declaration of title in and recovery of khas possession of, one half of a certain holding, upon the allegation that the plaintiff purchased the entire holding in a rent execution sale under the provisions of the Bengal Tenancy Act. The facts, in so far as they are admitted, are as follows. The lands comprised in the holding in dispute constituted an under raiyati jama of 3.42 acres with a right, of occupancy, held at a rental of Rs. 19-8-0(SIC) The landlords of this jama were Rama Nath, Sardar and others, and the jama was held by one Tarak Nath Biswas by virtue of a potta, granted to him. It would appear that at some time prior to the year 1903, the predecessors-in-interest of defendants 1 to 4 were given a subordinate tenancy under this jama In the year .1907, Tarak Nath brought a rent suit or suits against the predecessors of defendants 1 to 4, and from the records of that litigation, it appears that Tarak Nath had a cosharer, one Dhanapati, who was joined along with Tarak as a plaintiff in the suit or suits for recovery of rent from the predecessors of defendants 1 to 4. It may be stated here that no evidence has been given, in the present suit, of any conveyance either by Dhanapati or by his heirs of his or their interests to anybody else.
2. In the year 1936, the Sardar landlords of this holding instituted a suit for rent against the heirs of Tarak who are his sons and they obtained a decree in execution of which the present plaintiff purchased this holding. The sale was confirmed on 1st December 1938, and the plaintiff obtained symbolical possession on 9th April 1939. On 31st August 1939, the plaintiff caused notices under Section 167, Bengal Tenancy Act, to be served upon defendants 1 to 4. His case is that the interest of these defendants which is a tenancy under an under-raiyati, was an encumbrance within the meaning of the Act, and that it had been annulled by service of the notices just referred to. It may be stated here that the plaintiff succeeded in obtaining khas possession of half the lands covered by this interest of defendants 1 to 4. On 11th December 1939, the plaintiff instituted the present suit in respect of the other half. His case was that defendants 1 to 4 were in possession of the lands in suit, and that they, in collusion with the other defendants, were keeping him out of possession. The case for the defendants was that the plaintiff had acquired no title to the property, that the suit was not maintainable, and that it was barred by limitation. The defence further was that the sale in which the plaintiff had acquired the property was not a rent sale, as the decree obtained by the Sardars against the heirs of Tarak Biswas was no more than a money decree, the heirs of Dhanapati who had a subsisting interest in the tenancy not having been made parties to the suit. The learned trial Court granted the decree prayed for, but that decree has been reversed by the learned lower appellate Court which has held that the holding in dispute did not pass to the plaintiff in the execution sale by reason of the fact that, in the suit in which the Sardars obtained a decree for sale against the heirs of Tarak Biswas, the other cosharers in the tenancy, namely the heirs of Dhanapati had not been impleaded as parties.
3. On behalf of the appellant, three points have been taken. First, that the learned lower appellate Court was wrong in holding that Dhanapati's heirs were cosharers of Tarak's sons and necessary parties to the landlords' suit for rent. Second, that even if Dhanapati's heirs were cosharers, the defendants in the rent suit represented the entire body of cosharer tenants by reason of the provisions of Section 146A, Bengal Tenancy Act, and that, therefore, the decree obtained against Tarak's heirs was a rent decree. Third, that the learned lower appellate Court has wrongly placed upon the plaintiff the onus of proving that Dhanapati's interest in the holding came to an end sometime after the year 1907. On behalf of the respondents, Mr. Sarkar has sought to uphold the decree of the lower appellate Court on two grounds which the lower appellate Court has negatived. These are, firstly, that the suit was incompetent because in it the plaintiff did not pray for the setting aside of an order passed against him in a previous proceeding under Order 21, Rule 58. Civil P.C., and, secondly, that the sub-tenancy of defendants 1 to 4 was a protected interest. I am satisfied that there is no substance in these two points, and they must be negatived for the reasons set out in the judgments of both the Courts below.
4. As regards the contentions raised by the learned advocate for the appellant, it is clear that the first contention must fail as the matter is concluded by the appellate Court's finding of fact. The second and third contentions have, however, to be examined, and it would be convenient to consider these together. As I have already stated, there was evidence to show that Dhanapati had a subsisting interest in the year 1907, and the onus, therefore, lay upon the plaintiff to prove that the interest of Dhanapati was extinguished before the filing of the suit which the Sardars instituted in 1936. The plaintiff did, in fact, discharge that onus by showing that in the record of rights which was finally published in the year 1931-1932, the only recorded tenants were the heirs of Tarak, and also that in the year 1933, a suit for rent against defendants 1 to 4 was brought by the heirs of Tarak alone. The onus in this case again shifted to the defendants, and in my opinion, they discharged it by showing that the plaintiff in his petition in the claim investigation under Order 21, Rule 58, Civil P.C., (EX. C) admitted that Dhanapati's heirs were, in fact, cosharers of this tenancy in the year 1939. The learned lower appellate Court has accepted this admission, in my opinion, rightly. Mr. Banerjee has argued that Ex. C contains no such admission and has produced a translation of the document. The document certainly shows that the plaintiff regarded the heirs of Dhanapati as persons who claimed a subsisting interest in the holding under the Sardars. The position therefore was that it had not been shown that Tarak's heirs were not cosharers with the Dhanapati's heirs. This finding of fact must stand and it paves the way to Mr. Banerjee's contention that under the provisions of Section 146A, Ben. Ten. Act, it must be deemed that the entire body of cosharer tenants were represented in the suit of the Sardars. Mr. Banerji contends that the sons of Tarak were all the cosharer tenants of the holding whose names were entered in the landlord's rent roll within the meaning of Clause (iv) of Sub-section (3) of Section 146A, Ben. Ten. Act. It is true that the learned lower appellate Court has negatived this contention by saying that there is no evidence on record to show who may have been the tenants whose names were entered in the landlord's rent roll at the time when the suit was brought. He has observed that no inference can be drawn in favour of Tarak's heirs alone having been entered in the landlord's rent roll at the time from the fact that the potta was originally granted in his name only. Upon an examination of all the available materials, I am satisfied that this finding is clearly wrong because the evidence far from supporting it points to an opposite conclusion. Apart from the potta, there is the record of rights to which the learned lower appellate Court has paid scant attention. There is also the fact that in 1933, it was Tarak's sons only who sought by a rent suit to recover rent from defendants 1 to 4. In that suit, they obtained a decree. The most important circumstance, in my judgment, is the plain fact that in the suit of Sardars, they impleaded nobody but the heirs of Tarak. Surely, it cannot be assumed that if the names, of other tenants were upon the landlord's rent roll, he would be so foolish as to leave them out in a rent suit. All the circumstances support the conclusion that the sons of Tarak who were impleaded as defendants in the Sardars' suit clearly answered the description contained in Clause (iv) of Sub-section (3) of Section 146A, Ben. Ten. Act, they being all the cosharer tenants whose names were entered in the landlord's rent roll.
5. In support of the contention that this is sufficient to justify the Court in holding that the entire body of cosharer tenants was represented in that suit within the meaning of Section 146A, reliance has been placed upon the following cases: Sashi Kanta Acharjee v. Leohoo Sheikh : AIR1936Cal30 , Ayesha Khatun v. Md. Hossain Molla : AIR1941Cal515 These decisions were all decisions of Mitter J. In the first two of these cases, Mitter J., had held that all the clauses of Sub-section (3) of Section 146A, Ben. Ten. Act, were disjunctive. The decision in Ayesha Khatun v. Md. Hossain Molla ('37) 41 C.W.N. 85 was prior to a decision of a Divisional Bench of this Court in Amulya Charan Misra v. Pran Krishna Adhikary : AIR1938Cal531 In the latter case it was held that in order that the defendants in a rent suit may be deemed to have represented the entire body of cosharer tenants, it must be shown that such defendants include all the cosharer tenants who fall within every one of the four classes enumerated in Clause (i) to (iv) of Sub-section (3) of Section 146A, Ben. Ten. Act. This seems to have been the effect of that judgment, but it has been considered and lucidly explained by Mitter J., : AIR1941Cal515 In his judgment in this case, Mitter J., has said that the language employed by him in his two earlier decisions was somewhat loose. He has also shown what, in my judgment, is the real import of Sub-section (3). The law as now stated by Mitter J., is this. The four clauses of Sub-section (3) are disjunctive, but the Court cannot hold that the defendants in the suit represented the entire body of the cosharer tenants if it is found that even one cosharer tenant answering any of the descriptions in the four clauses has been left out.
6. Now, in the present case, there is no evidence whatever to show that there are heirs of Dhanapati who could be brought within the descriptions contained in any of these four clauses. The attention of the Courts below does not seem to have been drawn to the decisions just noted and the question now under consideration was clearly not raised in the present form. It is, however, a question of fundamental importance, being one upon which the right decision in this suit must depend. In these circumstances, the judgment and decree of the learned lower appellate Court must be set aside, and the matter must be remanded to the lower appellate Court for a proper investigation of this question. The defendants will be at liberty to call evidence to show that some heir of Dhanapati who comes within one or other of the descriptions contained in the four clauses of Sub-section (3) of Section 146A, Ben. Ten. Act, was left out of the suit for rent which the Sardars instituted in 1936. The plaintiff will be entitled to call evidence in rebuttal. The lower appellate Court will then dispose of the appeal according to law. This appeal is disposed of in these terms. The costs will abide the result.