1. The judgment of the Courts below do not contain a sufficient statement of the facts, or of reasons for the conclusions of law at which the Courts arrived. The facts would appear to be as follows: The lands in suit appertain to a jama of Rupees 11-4.0 in the name of Ram Charan Ray held under two sets of co-sharer landlords described as 9 as. 12 gds co-sharers and 6 as. 8 gds. co-sharers. It may here be stated that in the kobala of defendant 1 to which reference will presently be made Earn Charan Rai's interest is described as that of a settled raiyat. In 1927, the 6 as. 8 gds. co-sharers instituted a suit for rent in respect of their share against Atul, Suresh, and Khitish who are the descendants of Ram Charan Roy. The 9 as. 12 gds. co-sharer landlords were not made parties to the suit. In execution of the decree obtained in this suit, the interest of Atul, Suresh and Khitish was purchased by the 6 as. 8 gds. co-sharer landlords in 1928. In 1930 the 6 as. 8 gds. co-sharer landlords granted a lease to defendants 2 and 3. In 1932 the 9 as. 12 gds. co-sharer landlords instituted a suit for rent for the period of 1335 to 1338 B. S. against Atul, Suresh and Khitish and made the 6 as. 8 gds. co-sharer landlords parties to that suit. They obtained a decree, and in May 1933 in execution thereof, the holding was brought to sale and was purchased by the plaintiff in the present suit. Later in 1933 possession was delivered through Court to the plaintiff.
2. Thereafter, defendants 2 and 3 started an objection case under Order 21, Rule 100, Civil P.C. and this was allowed ex parte on 15th May 1934. In January 1935, defendants 2 and 3 sold their rights to defendant 1 by a kobala. On 14th May 1935, the present suit was instituted. The defendants are the appellants in this appeal. On their behalf, it is contended that they are entitled to joint possession to the extent of the 6 annas 8 gandas share. The two questions involved in this appeal are whether Section 22, Sub-section (2), Ben. Ten. Act, as it stood before the amendment of 1928, applies to the purchase by the 6 annas 8 gandas co-sharer landlords, and whether if it so applies the subsequent letting by those landlords to defendants 2 and 3 would create a raiyati interest in their favour. The section as it stood prior to the amendment of 1929 was as follows:
If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may be from time to time payable to them; and if such transferee sublets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.
3. In my judgment it follows from the section itself that a purchase by co-sharer landlords in execution even of a decree which has the effect of a money decree must be deemed to extinguish the tenancy, and any lease subsequently granted by them would create a raiyati interest and not a mere under-raiyati interest. The illustration which was appended to Sub-section 2 of Section 22 as it then stood makes this sufficiently clear. If therefore the provisions of Sub-section 2 of Section 22 apply to the facts of the present case, the plaintiff would not acquire any right by his subsequent purchase and his suit must fail. The case in Sm. Golbar Bibi v. Aswini Kumar : AIR1929Cal253 is to some extent an authority upon which the appellant may rely. Although that case was concerned with the interpretation of Section 22 (2) as amended by the Bast Bengal and Assam Tenancy Act, that circumstance makes little or no difference. In my judgment, the effect of Section 22, Sub-section (2) upon the question which has arisen here is precisely that to which the East Bengal and Assam Amendment sought to give clearer expression.
4. It has been argued on behalf of the respondents that Section 22, Sub-section (2) does not apply as it has not been shown that the holding was transferable. Now, it is well established that before Section 22, Sub-section (2) can apply, the holding must be transferable in law. See in this connexion the case in Girish Chandra v. Kedar Chandra Roy (1900) 4 CWN 569; Lakhi Kant v. Balabhadra (1915) 2 AIR Cal 120 and Sm. Golbar Bibi v. Aswini Kumar : AIR1929Cal253 . It follows that if the holding was not transferable, the position of the co-sharer landlords who purchased it in 1928 would be that of an unrecognized transferee of an occupancy holding and there would be no merger. Therefore in a subsequent sale in execution of a rent decree passed in a suit properly instituted by the other co-sharer landlords against the original tenants and the 6 anna 8 ganda co-sharers landlords, the entire holding would pass and it would follow that the plaintiff's suit would have to be decreed in its entirety. I do not think the Appellate Court has adverted to this aspect of the case. Upon the question whether the holding was transferable or not there is no finding and the matter requires to be further investigated. If it was a transferable occupancy holding, then Section 22 (2) would apply and the plaintiff's suit would fail. If however it is found that the holding was not transferable, the decision of the lower Appellate Court from which this appeal is taken would stand. The appeal is allowed and the decree of the lower Appellate Court is set aside and the case is remanded to the lower Appellate Court for just hearing according to law. Costs will abide the result.