1. This appeal is by defendant No. 6. The suit was originally brought in res peot of three plots, but for reasons into which it is not now necessary to enter the subject-matter of dispute was eventually reduoed to plot No. 3. The suit was dismissed by the Munsif but decreed on appeal by the Subordinate Judge for the whole of plot No. 3 with the exception of 5 gandas.
2. The holding of which this plot formed a portion originally belonged to one Ujir Ali. A rent-decree was obtained against him, and in execution of that decree the holding was sold and brought ostensively by defendant No. 10. Subsequently, defendant No. 10 executsd a release in favour of the plaintiff. He also executed a release in favour of defendant No. 12 which in appearance was prior in date to the release to the plaintiff. But it has been found by the Appellate Court that that release was antedated and. in fact, the plaintiff's lease was prior. The Court has further found that defendant No. 10 was really the benam dar for the plaintiff, the purchase having been made with her money. The defence of defendant No. 6 was that he had bought part of the land from Ujir Ali in 1302, and that he had bought 5 gandas from Nural Islam. It is in respect of the 5 gandas. portion that the suit has been dismissed. We are now corcerned with the rest of plot. No. 3.
3. The points taken before me arp, first, certain points in connection with Section 167 of the Bengal Tenancy Act. Secondly, that the suit was untenable in view of Section 66 of the Code of Civil Procedure; thirdly, that the Original decree in execution of which the properly was sold to plaintiff was bad in law, and, fourthly, that the suit was barred by limitation. I may mention at once that the third ground formulated by the learred Pleader in this appeal was subsequently withdrawn by him be saying that he was not in a position to press it. I shall, therefore, confine myself, to the other three points urged by him.
4. The point taken with reference to Section 167 is that the suit could Dot proceed because the notice required by that section to be given to the incumbrancer for the purpose of annulling the incumbrance was not given until after the institution of the suit, and there are subordinance objections that the notice in itself was invalid. To explain the general objection that the suit was bad because the notice had not been given in time it is neaessary to point out that the suit was instituted in May 1917, issues were framed on the 12th July 1917 and the notice was given at some subsequent date, though the learned Pleader is not able to tell me exactly what that date was. Under Section 167 of the Bengal Tenancy Act, notice is to be given within the year from the date of the sale or from the date on which the purchaser first has notice of the incumbrance In the present case it appears that the purchaser did not have notice of the incumbrance until the written satement was filed, in fact it was the written statement which gave him notice. The learned Pleader for the appellant, however, argues that, even in spite of that fact the suit cannot proceed and he referp, to support his argument, to the case of Radhay Koer v. Ajodhya Das 7 C.L.J 262 relying in particular on these observations of the learned Judges: 'The plaintiff must seek title as it stood on the date of the institution of the suit, and that the incumbrance subsists until notice under Section 167 has been properly served upon the incumbrancer.' The incumbrance in the present. case, I may here note, is of the nature of title acquired by adverse possession against the previous tenant. That that would be an incumbrance is not disputed. The case cited is not on all fours with the case now before me. In fact it is the converse case to the present. There the purchaser was the defendant and he sought to defend a suit brought against him for possession by the incumbrancer by giving notice under Section 167 after the institution of the suit. No doubt, the observations that the plaintiff must seconded on the title as it stood at the date of the institution of the suit are observations of general application and the principle need not be disputed. But there is a case in this Court which has direct bearing on the question now before me. In Second Appeal No. 1928 of 1899 Gopinath Biswas v. Radha Shyam Poddar 58 Ind. Cas. 671 : 24 C.W.N. 657 this very question appears to have been raised. There the notice under Section 167 was served after the institution of the suit. The learned Judges in disposing of the question remarked with reference to the incumbrance: 'The plaintiff was first made aware of it, when it was pleaded in the written statement. We think the plaintiff had a good cause of action and was entitled, to recover the property from the defendants; subject, however, to the conditions that the incumbrance would stand good if not annulled within one year of the plaintiff becoming aware of its existence. The plaintiff's right of action which was good and valid when the suit was brought could not be taken away by what was brought to his notice, for the first time, in the defendant's written statement. We are not now concerned to enquire whether the plaintiff has not taken any action to annul the incumbrance. We have only to see whether he had a right to be put in possession of the tenure at the time he brought his suit, and, as we have found that he was so entitled, we affirm the decree of the lower Court with this reservation that the incumbrance would stand good if not annulled within one year of the plaintiff's knowledge thereof,' So that this case is not merely an authority for the proposition that a notice served subsequently to the institution of the suit would be sufficient for the purpose of the plaintiff, but it is further authority for the view which was taken by the Subordinate Judge, though he does not give his ground for taking the view, that the notice did not appear to be necessary. For the effect of that judgment is not only that a suit is not barred when the notice is not issued till after the institution of the suit but also that a suit for possession can be decreed subject to the reservation that the incumbrance is annulled by notice within the period of one year of the plaintiff's becoming aware of it. That being so, the first point, in my opinion, fails.
5. A further point is taken with reference to this notice and, that is, that it was note, properly signed. It is argued that such a notice must be signed either by the purcharer himself or by a duly authorized agent. The Subordinate Judge has said that the notice was signed by the plaintiff's agent. The notice itself has been referred to by the learned Pleaders. It appears to have, been Signed by the Mukhtar of the plaintiff, on behalf of the plaintiff that if, the signature is what is ordinarily krown as a bakalam signature, which is equivalent to the signature of the person himself. But it is. said, and this point was apparently given effect to by the first Court, that the Mukhtarnama did not give the Mukhtar authority to sign a notice under Section 167 We, do not know whether authority of any other kind was given, whether the plaintiff gave, the Mukhtar verbal instructions to sign notices for her, or whether it was the fact that the Mukhtar signed because the plaintiff could cot write. There may be various reasons for the notice going in the way it did. It seems to me that all these are matters which cannot be entered into at this stage, No issue was raised as to the validity of the notice in itself, as to whether it was a notice in proper form or whether it was properly served. The only issue in connection with Section 167 was Issue No 4. That was: Is the suit maintainable in its present form without annulling incumbrance under Section 167 of the Bengal Tenancy Act That was the general issue framed because of the allegation that no notice had been given annulling the incumbrarce. This issue was framed before the notice was given and, therefore, it is perfectly clear that any question raised by that issue could rot possibly raise the question us to whether the notice in itself had the essentials of a valid notice The other questions, such as the, signature on the notice or the method of-service were never raised. No doubt, there were some remarks by the first Court and by the, second Court which might have point if such an issue had been raised But I do not think that a Court of second appeal ought to proceed on the assumption that all evidence available was given on points which in fact had never been put in issue. That being so, no effect, in my opinion, should be given to the argument that the notice was not properly signed. A similar objection as to the method of service of the notice not being correct was hinted at, but the learned Pleader for the appellant frankly admitted that he could not press it now.
6. Then, I some to the second point taken, namely, that Section 66, Civil Procedure Code, bars the suit. That section says that 'no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff,' In terms, that section does not apply to this case, because the suit is not brought against a person claiming title under a certified purchase. The plainiiff has been found to be the real purchaser, It is true that the objection might apply as regards defendant No. 10, but defendant No. 10 is not the appellant here, and that section would be no reason for holding that the suit is barred against defendants other than defendant No. 10.
7. I have already stated that the third ground mentioned has not been pressed. That brings me to the fourth point, that the appeal is barred by limitation, I must confess that I feel some difficulty in appreciating this argument. The purchase was in April 1912. The suit was brought in May 1917. So for as I understand the argument of the learned Pleader, it is this, that because his client was in possession in 1302 and may or may not have acquired title by adverse possession against the original tenant, therefore, he has acquired title by adverse possession against the present plaintiff. If that were a good ground it would be quite unnecessary to discuss Section 167. The Court proceeded on the footing that the adverse possession against the original tenant was an incumbrance which could be annulled. The argument loses sight of the fact that the purchase was made in execution of a rent-decree and was not merely a purchase of the right, title and interest of the original tenant.
8. The appeal is dismissed with costs.
9. There is a cross-objection which is not pressed and is dismissed.