B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiff and it arises out of a suit commenced by him to recover possession of the lands in suit on establishment of his title by purchase at a mortgage sale. The facts so far as are material for our present purposes may be stated as follows : The lands in suit constituted a raiyati holding carrying a rental of Rs. 19 a year, and belonged to one Nikaria Bibi. Nikaria died leaving behind her a son named Nedu and a daughter, Purna Bibi. On 17 th May 1913, Nedu who had only two-third share in the holding, executed a mortgage deed in respect of the entire lands in favour of one Gurudas, the predecessor of the plaintiff, to secure an advance received from the latter. A person named Amo Pramamk joined as a co-mortgagor in this mortgage bond, but it is admitted that he had no interest in the property. On 16th April 1914 the same mortgagors created a second mortgage of the same property in favour of the Bogra Loan Company. On 22nd April 1922, the landlord of the holding who is defendant 22 in this suit and who had already obtained a rent decree against Nedu and Purna, put up the holding to sale in execution of the rent decree and purchased it himself. The sale was confirmed on 26th May 1922 and the purchaser took possession through Court on 4th August following. The landlord purchaser then settled portions of the land with defendant 1 and one Nayebulla and possessed the rest in khas. In the meantime, the Bogra Loan Company, who were the second mortgagee with regard to the holding obtained a decree on the basis of their mortgage and in execution of that decree the holding was again put up to sale on 19th March 1925, and purchased by one Soleman, who is defendant 8 in this suit. After this, Gurudas, the first mortgagee, instituted a suit to enforce his mortgage bond. Soleman was made a party to this mortgage suit, but not the landlord who purchased the holding at a rent sale in the year 1922. Gurudas obtained a decree on 19th August 1926. The plaintiff got an assignment of this decree from the wife and heir of Gurudas, and on 3rd November 1933 purchased the mortgaged lands in execution of the same. On 30th March 1934 the plaintiff took symbolical possession through Court. In the meantime the tenancies in favour of defendant 1 and Nayebulla were sold in execution of the rant decrees obtained against them by the landlord and they were purchased by the latter. After this purchase the landlord settled these lands with defendants 12 and 23. The plaintiff's case is that when he attempted to take actual possession of these lands he was resisted by all the defendants acting in concert which obliged him to institute the present suit.
2. The suit was contested by defendants 8, 12, 17, 22 and 23 and their defence in sub-stance was that the plaintiff could not acquire any title to the property against the landlord purchaser at a rent sale, and that the suit was barred both by the rules of general and special limitation. It was further alleged that Nedu, the mortgagor, having no more than a two third share in the holding, the plaintiff could not have, in any view of the case, got more than that share by his purchase in execution of the mortgage decree. This last point, it may be pointed out, was not disputed by the plaintiff at the time of the trial, and it was conceded that if the plaintiff were to succeed at all, he could not recover more than a two-third share of the property in suit.
3. The Munsif who heard the suit was of opinion that the mortgage to Gurudas was an incumbrance on the raiyati holding under the provisions of Section 161, Ben. Ten. Act, and as the landlord purchaser did not annul the incumbrance in the manner contemplated by Section 167 of the Act, his purchase was subject to the mortgage; and the plaintiff therefore did acquire a title to the property as against the landlord by virtue of his purchase at the mortgage sale. He held however that though the plaintiff's suit was not barred by general limitation it was barred by the rule of special limitation contained in Article 3, Schedule 3, Ben. Ten. Act, inasmuch as the plaintiff was kept out of possession by the landlord for more than two years since the date of his taking symbolical possession through Court. On this ground alone the trial Court dismissed the plaintiff's suit.
4. There was an appeal taken against this decision to the Court of appeal below and the Subordinate Judge of Bogra who heard the appeal concurred in the order of dismissal made by the Munsif though on entirely different grounds. The Subordinate Judge was of opinion that as the holding in dispute was a non-transferable holding the plaintiff acquired no legal right by his purchase at the mortgage sale, which he could assert against the landlord purchaser, and there was no obligation on the latter to annul the mortgage under Section 167, Ben. Ten. Act. It was further held that as the landlord purchaser was not made a party to the mortgage suit instituted by the plaintiff's predecessor and as such suit was now out of time, the present suit for possession must also fail as being time-barred. It is against this decision that the present second appeal has been filed, and the learned advocate who appears for the appellant has challenged the propriety of the decision of the lower appellate Court on both these points.
5. The first point for our consideration in this appeal is whether the holding being not transferable the plaintiff as a purchaser in the mortgage sale could acquire any rights which were enforceable against the landlord who himself purchased the holding at a previous rent sale. The Subordinate Judge came to the conclusion that he has no such rights and he relied in support of this view on the decision of the Patna High Court in Sourendra Mohan v. Kunjbihari Lal ('29) 16 AIR 1929 Pat 222. In my opinion the view taken by the Subordinate Judge cannot be supported on the facts of the present case. Assuming that the holding was non-transferable, a transfer of the holding by way of a mortgage and not by way of sale and a fortiori a mortgage of a portion of the holding, did not certainly entitle the landlord to re-enter, and such mortgage could not be ignored by the latter: vide Dayamoyi v. Ananda Mohan ('15) AIR 1915 Cal 242 Such mortgage is certainly a limitation on the interest of the tenant and hence amounts to an incumbrance within the meaning of Section 161, Ben. Ten. Act, and as an incumbrance it does not stand ipso facto cancelled by the rent sale, but has to be annulled by the purchaser in the manner laid down in Section 167, Ben. Ten. Act. It would make no difference that the purchaser was the landlord himself and not a stranger. This view is well established by a series of decisions of this Court and reference may be made in this connexion to the cases in Pran Krishna v. Atul Krishna ('18) 5 AIR 1918 Cal 95; Sital Chandra v. Parbati Charan ('22) 9 AIR 1922 Cal 32; Jogendra Chandra v. Debendra Nath ('35) 39 CWN 428. It would be clear on the authorities of this Court, to which reference has just now been made, that if at the date of the purchase of the holding by the landlord at a rent sale the mortgage was still existing as mortgage and the property had not been sold in execution of a mortgage decree, it is the duty of the landlord purchaser to annul it. If he annuls it, the mortgage is extinguished and cannot be enforced any further. If he does not annul it, then in a suit to enforce the mortgage bond to which the purchaser is made a party, it is no answer to the plaintiff that the holding was non-transferable and hence in execution of the mortgage decree the purchaser would not acquire any title against the landlord. The purchaser being impleaded as a defendant in the mortgage suit qua purchaser and not qua landlord, defence is altogether outside the scope of the mortgage suit.
6. The question certainly does arise if the purchaser at the mortgage sale wants to take possession of the property from the landlord who is already in possession of the holding as a purchaser at the rent sale, and in such circumstances I am inclined to agree with the view taken by the Patna High Court in Badlu Pathak v. Sibram Singh ('28) 15 AIR 1928 Pat 234, that the plaintiff purchaser would not be entitled to oust the landlord and assert his rights as a purchaser against him, if the holding itself was non-transferable and he did not acquire any rights against the landlord as such purchaser. This question did not arise in Pran Krishna v. Atul Krishna ('18) 5 AIR 1918 Cal 95 or in Jogendra Chandra v. Debendra Nath ('35) 39 CWN 428, both of which were suits on the mortgage and it was held, and in my opinion rightly, that the landlord purchaser could not resist the claim of the mortgagee unless he had annulled the mortgage in accordance with the provisions of Section 167, Bengal Tenancy Act. As I have said already, no question of transferability could be raised by the purchaser in such mortgage suit. In Sital Chandra v. Parbati Charan ('22) 9 AIR 1922 Cal 32, the suit was by a mortgagee purchaser for recovery of possession and it was brought against certain persons with whom the lands were settled by the landlord, who had purchased the holding at a previous rent sale. The landlord himself was no party to the suit and no question was raised as to the transferability of the holding. It was not the case of the defendants that because the holding was not transferable the purchaser did not acquire any right against the landlord or any person with whom the lands were subsequently settled by the latter. The lower Courts adopted the view that the effect of the sale in execution of the rent decree was to destroy forthwith the mortgage held by the plaintiff, and this view, palpably erroneous as it is, was set aside by this Court in appeal. In Badlu Pathak v. Sibram Singh ('28) 15 AIR 1928 Pat 234 the suit was for possession, commenced by a mortgagee purchaser of a non-transferable occupancy holding. It was brought against the landlord who had purchased the holding at a rent sale and certain tenants who were inducted into the land by the latter. It was held by Dawson-Miller C. J. and Adami J. that the suit must fail. Dawson-Miller C. J. made the following observations in his judgment:
Can the mortgagee who has obtained a decree on his mortgage and purchased the property in execution claim possession from the landlord or the raiyat settled on the land by the landlord? Clearly not without the landlord's consent. He has no right to hold the land as a raiyat against the wilt of the landlord and his incumbrance, although never formally annulled and although still subsisting for what it is worth, is a barren right against the landlord when he seeks to enforce it by taking possession of the property. It is therefore of no consequence that the landlord did not seek to annul the mortgage, for the mortgagee could not step into the shoes of the original tenants and acquire a raiyati interest against the landlord's will.
7. This statement of law I do not dispute. But I do not approve of the way in which this proposition was extended by another Division Bench of the same High Court in Sourendra Mohan v. Kunjbihari Lal ('29) 16 AIR 1929 Pat 222. There the suit was by a mortgagee of a non-transferable holding to enforce his mortgage bond. The landlord who had purchased the holding at a rent sale was made a party to it and the question was raised whether the latter could ignore the mortgage altogether, although he bad not annulled it under Section 167, Bengal Tenancy Act. The learned Judge allowed the defendant to raise the question of transferability which was appropriate only to his character as a landlord and not as a purchaser, and dismissed the suit on the ground that to decree a sale on the basis of the mortgage bond would be to oust the landlord purchaser from possession. With all respect to the learned Judges I must say that this is not a sound view to take. As I have said already, the object of Section 167, Bengal Tenancy Act, is to enable the purchaser at a rent sale, no matter whether he is the landlord himself or a stranger, to get rid of the incumbrance which was created by an act of the tenants and if notice is served upon such incumbrancer his rights are gone and cannot be enforced in a suit. If the procedure laid down in Section 167, Ben. Ten. Act, is not followed the rights of the mortgagee must be held to subsist and he must be allowed to have a decree upon his mortgage bond and a sale of the mortgaged property for what it is worth. Whether he will be able to recover possession of the property as against the landlord who might then raise the question of non-transferability against the plaintiff is a question which depends for its determination upon other considerations.
8. I cannot also approve of the view expressed by Boss J., in Murlidhar v. Surat Lal ('22) 9 AIR 1922 Pat 555, that the holding being not a transferable one and the mortgage being a transfer, it could not amount to an effective limitation on the right of the tenant and hence could not rank as an incumbrance at all. This view would be directly contrary to that taken by the Full Bench decision of our Court in Dayamoyi v. Ananda Mohan ('15) AIR 1915 Cal 242. referred to above. In the present case the suit is by a mortgagee purchaser who seeks possession of the property purchased by him as against the landlord, who is in possession of the property already, and consequently the question of transferability can, in my opinion, be raised by the defendant landlord. The plea however is of no help in the circumstances of the particular case; for the sale here took place in 1933 long after 1928 when the occupancy holdings were made transferable by law. The mortgage itself could not be ignored by the landlord as he did not annul it under Section 167, Ben. Ten. Act, and as the sale took place after 1928 the sale is, in my opinion, binding on the landlord. I am of opinion therefore that the plaintiff's suit cannot be thrown out on the ground that the holding was not transferable by law and consequently the plaintiff could not acquire any title against the landlord.
9. The next point for our consideration is whether the plaintiff not having made the landlord purchaser a party to his mortgage suit is entitled to maintain the present suit for possession against him. In cases where a person interested in the equity of redemption is left out of a mortgage suit there are two opposite principles which have been invoked by different Courts at different times for determining the rights of the purchaser at such sale. According to one view, which may be called the Allahabad view, and which has been accepted by this Court in Aghore Nath Banerjee v. Deb Narain ('07) 11 CWN 314 and Habibullah v. Jugdeo Singh ('07) 6 CLJ 609, the mortgage decree and the sale consequent thereon are of absolutely no effect against a person who was a necessary party to the mortgage suit but was left out. The remedy of the mortgagee purchaser in such cases was to institute a suit upon the mortgage bond against the person who was omitted from the suit and pray for an order of sale. According to the other view which has been taken in a large number of decisions of this Court, of which the eases in Gangadas Bhatter v. Jogendra Nath ('07) 11 CWN 403, Jogdeo Singh v. Habibullah Khan ('07) 6 CLJ 612 and Nihar Mala Debi v. Saroj Bandhu : AIR1933Cal728 , may be taken as types, the purchaser acquires the property as it existed at the date of the sale discharged of the mortgage lien, but subject to the rights of those who were not made parties to the suit. The purchaser in such cases can sue for possession subject to the exercise of the rights of redemption by such persons.
10. It seems to me that whether the suit) should be one for possession or for enforcement of the security itself would depend upon the fact as to whether the mortgagor was or was Dot a party to the mortgage suit. If the mortgagor himself or the person in whom the mortgagor's rights were vested was impleaded as a party defendant but some person interested in the equity of redemption, as for example, a puisne mortgee, was left out, then the purchaser acquires not only the rights of the mortgagee plaintiff but the interest of the mortgagor as well, and he can sue for possession as purchaser of the mortgagor's rights subject to his first mortgagee rights being redeemed by the puisne mortgagee, and he in turn being allowed to redeem the latter in his capacity as a mortgagor. But when the equity of redemption is entirely unrepresented in the mortgage suit and the holder of the equity of redemption is not at all made a party to such suit, the possession of the purchaser cannot be higher than that of the assignee of the mortgagee's rights. As a purchaser of the mortgagee's rights he cannot sue for possession, and his only remedy would be to institute a suit for enforcement of the mortgage bond. This view that I am taking is supported by a Division Bench of this Court in Digambar v. Suajan : AIR1929Cal233 .
11. It has further been held in some cases that the mortgagee purchaser would not be entitled to sue for possession if he were aware of the existence of the interest of any person whom he did not make a party in the mortgage suit: vide Krishtopada Roy v. Chaitanya Charan ('23) 10 AIR 1923 Cal 274. In the case before us the only person in whom the rights of the mortgagor were vested at the date when the plaintiff's predecessor instituted the mortgage suit was defendant 22, (the landlord purchaser, but he was not made a party defendant at all, and the equity of redemption therefore must be held to have been totally unrepresented in the mortgage suit. In such a case I am of opinion, as I have said above, that the mortgagee purchaser cannot maintain a suit for possession and his only remedy would be a suit to enforce his mortgage security. As the suit upon the mortgage is now barred by limitation I do not see how the plaintiff can ask the Court to have his suit for possession converted into one for enforcement of the mortgage bond. In my opinion, therefore, the plaintiff's suit must fail on this ground.
12. It is not necessary for us to consider whether the plaintiff's predecessor had notice of the purchase by the landlord when he instituted the mortgage suit, and it is not necessary also to consider whether the suit is barred by the rules of special limitation as contained in Schedule 3, Article 3, Ben. Ten. Act. Mr. Sinha, who appears for the appellant, has contended before us that the equity of redemption cannot be said to have been wholly unrepresented in the present suit, inasmuch as Soleman who was a purchaser at the instance of the second mortgagee was made a party to the plaintiff's mortgage suit. But Soleman could not acquire any title to the equity of redemption as the property had already been sold to the landlord in 1922, which was three years prior to the date of Soleman's purchase, and Soleman himself admits in his written statement that he did not acquire any rights by virtue of his purchase at the mortgage sale. The result therefore is that in our opinion the present suit as a suit for possession is not maintainable and as a suit for the enforcement of the mortgage bond is barred by limitation. The plaintiff therefore is not entitled to succeed. The result therefore is that the appeal is dismissed. We make no order as to costs.
13. I agree.