B.K. Mukherjea, J.
1. The facts giving rise to this appeal lie within a short com-pass and may be stated as follows : Under diara touzi No. 6454 of the Faridpur Collectorate there was a tenure owned jointly by the plaintiffs and defendants 10 to 20 of the suit out of which the appeal arises at a yearly rental of Rs. 282-15-0 only. Under this tenure there was a subordinate tenancy held by defendants 1 to 7. The touzi was sold for arrears of Government revenue on 23rd March 1934, and it was purchased by defendant 8 in the benami of defendant 9. The plaintiffs got a conveyance of the touzi from the auction purchaser in pous 1341 B.S. Their case is that after the purchase they annulled the intermediate tenure held by them jointly with defendants 10 to 20 and they accordingly pray for a declaration that they are entitled to realize rents directly from the under-tenants who are defendants 1 to 7 in the suit. There was also a prayer for recovery of rents from defendants 1 to 7 for the last two kists of 1341 and the first kist of 1342 B.S.
2. The suit was contested by defendants 15 to 19 and their defence in substance was that they were not tenure-holders but raiyats in respect of the lands held by them under the touzi and they having acquired occupancy rights in the same were protected from eviction under Section 37 of Act 11 of 1859. It was further contended that even if they were tenure-holders, as the tenure was in existence when the touzi was created, it came under the second exception to Section 37 of the Revenue Sale Laws and hence could not be annulled. These defendants maintain that they are still entitled to realize rents from defendants 1 to 7 who hold the subtenancy and it was for recovery of their share of the rents in respect of the subtenancy from the year 1338 to the third quarter of 1341 B.S., that they instituted a rent suit against the tenants to which the plaintiffs were also made parties. This rent suit which was Suit No. 65 of 1936 was heard along with the title suit instituted by the plaintiffs and they were disposed of by one and the same judgment by both the Courts below.
3. Both the Courts below held that defendants 15 to 19 were tenure-holders and not raiyats and that the tenure was not protected from annulment under Section 37 (2), Revenue Sale Laws. Accordingly, the plaintiffs' suit was decreed and they were declared entitled to realize rents direct from defendants 1 to 7 from Pous 1341 B.S. when they purchased the touzi. It is against this decision that S. A. No. 182 of 1938 has been preferred by the contesting defendants. The rent suit which was instituted by defendants 15 to 19 was also disposed of in accordance with the finding in the title suit. The rent suit was decreed in part, and the plaintiffs in that suit were allowed to recover rent for the period prior to the date of the revenue sale. There has been a second appeal against the decision in the rent suit as well and this is S. A. 183 of 1938.
4. In the main appeal the only point that has been pressed by Mr. Das who appears on behalf of the appellants is that the Courts below ought to have held that the tenure held by his clients is protected from annulment under the provisions of Section 37 (2) of the Revenue Sale Laws. It has been argued by Mr. Das that the estate being a temporary settled estate the word 'settlement' as used in the said clause must mean the last settlement which was of the year 1933 and as the tenure was in existence from before that, it is 'directly covered by the exception. It cannot be disputed that the word 'settlement' as used in Section 37 (2) of Act 11 of 1859 refers not to the permanent settlement of the year 1793, but it means the particular settlement or contract with the Government, whenever that might have been made, by which revenue was assessed upon certain lands: vide Raj Chunder v. Shaikh Busheer ('75) 24 WR 476; Mokbul Ali v. Basarat Ali ('21) 8 AIR 1921 Cal 192. In the present case the diara estate, No. 6454, was created in 1878 and in the month of April of that year a settlement, for the first time, was made with the proprietors for a period of 10 years only. There have been subsequent re-settlements with the original proprietors or their heirs for various terms and at various revenues and the last settlement was made in the year 1933 for a period of 15 years only, the revenue assessed being Rs. 192 a year. The question before us really is whether we should take the year 1878 or the year 1933 to be the year of the settlement of this particular touzi which was sold for default in payment of arrears of revenue. If it is the latter, as Mr. Das contends, he is undoubtedly entitled to succeed as the tenure held by his clients was admittedly in existence from before 1933. I do not think, however, that I can accept this contention as sound. The estate that has been sold is a revenue paying unit bearing touzi No. 6454 of the Faridpur Collectorate. It comprises lands which must be deemed to have formed part of the river bed in the year 1793. They were resumed some time before 1878 and it was in April 1878 that revenue was for the first time assessed upon the land and they were transformed into a revenue paying estate liable to be sold for its arrears. As this is a temporary settled estate, re-settlements have been made from time to time and not only the revenue but the quantity of the lands comprised in the estate might have changed at different periods but the estate, in my opinion, remains the same since it was first created in 1878 and I do not agree with Mr. Das that at each time a re-settlement is made a new estate is brought into existence.
5. In Nilima Prova Dutta v. P.S. Mantosh ('38) 42 CWN 864, the first settlement of an estate was made for a period of 40 years in 1882 and in 1895 the settlement holders created a tenure under them. On the expiry of the period of 40 years there was a re-settlement and the estate was subsequently sold for default in the payment of Government revenue. It was held by a Division Bench of this Court that the tenure created during the period of the first settlement; was not protected under Section 37 (2) of Act 11 of 1859. Mr. Das has sought to distinguish this case from the present one on the ground that here there was an express covenant that the settlement holder would get a renewal at the expiration of the period for which the first settlement was made; but the absence of such a covenant, in my opinion, does not make any difference, for the position would be exactly the same even if there was no such undertaking. Under the provisions of Keg. 7 of 1822, the original proprietors with whom the settlement was made were entitled to have the renewed settlements in their favour and it is only when they refused to accept any new settlement that the property could be settled with another person.
6. Mr. Das has further argued that as this tenure was in existence when the last revenue settlement was made in 1933 and the settlement authorities did take this tenure into account in fixing the Government revenue, the purchasers certainly could not claim higher rights and they must take the estate burdened with the tenure. Assuming that this contention is sound, I do not think that it is borne out by the settlement papers in the present case. The entry in the khatian Ex. E.2 shows conclusively that this tenure was not recognized to be binding on the Government and it cannot be said therefore that the settlement authorities did take that into consideration in fixing the Government revenue. The statutory title which the law gives to the auction purchaser at a revenue sale is for protection of revenue and in order to ensure due payment of revenue by such purchaser and to avoid the necessity of repeated sales of the property, he is entitled to all the rights which the original settler had at the time of the settlement. In my opinion, the settlement here must refer to the settlement in the year 1878 and as the tenure was admittedly not in existence at that date the purchaser is entitled in law to annul it. The result, therefore, is that in my opinion the view taken by the Courts below is sound and must be upheld and this appeal is accordingly dismissed.
7. Appeal No. 183.-In accordance with the decision in S. A. No. 182 of 1938 this appeal must also be dismissed. The plaintiffs in the rent suit who were defendants 15 to 19 in the title suit cannot recover rent for a period subsequent to the annulment of the tenure by the auction purchaser at a revenue sale. The result is that this appeal is also dismissed. There will be no order as to costs in both the appeals.
8. I agree, but I would like to add that I think that it might be necessary in the proper case to examine more closely whether the proposition stated in general terms that the word 'settlement' in Section 37 (2ndly), Land Revenue Sales Act, 11 of 1859, refers to the original settlement or to subsequent re-settlements, is correct or not. In the present case, the point is, to my mind, not material in view of the fact that at the last settlement this tenure was not recognized as being operative against the Government as shown by the khatian Ex. E-2.