1. This is an appeal by the defendants in a suit for possession of land upon declaration of title by purchase at an execution sale and for mesne profits. The Court of first instance dismissed the suit; upon appeal the District Judge has reversed that decision and has made a decree for ejectment in respect of the first seven parcels of land. On the present appeal the propriety of the decision of the District Judge has been assailed as erroneous in law. But before we deal with the questions which arise in the appeal, we have to examine two preliminary objections taken on behalf of the plaintiff-respondent.
2. The appeal was lodged in this Court on the 31st July 1913. On the 1st December 191,i the appeal was summarily dismissed under Rule 11, Order XLI, of the Code by Carnduff and Richardson, JJ. On the 28th February 1914, an application was made by the appellants for a review of this order. The application was heard ex parte on the 8th April 1914. The result was that the previous order of dismissal was recalled and an order was made to the following effect: 'The appeal will be heard; let the record be sent for and issue the usual notices'.
3. On behalf of the respondent, two objections have been urged against the validity of this order, namely, first, that it is inoperative because made in contravention of Rule 4 of Order XLVII of the Code, which requires that no application for review shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree or order a review of which is applied for; and, secondly, that if the order be assumed to have been properly made without notice, the appellants are restricted to the single ground upon which the application for review was based. In our opinion, there is no substance in either of these contentions. As regards the first objection, it need not be disputed, to use the language of Lord Macnaghten in the case of Mahomed Zahuruddin v. Nuruddin 14 M.L.J. 7, that, as a general rule, no order of review can be made without previous notice to the person in possession of the decree which is to be reviewed. But the substantial question is, who is the opposite party upon whom notice of the application should have been served in this case. The expression opposite party is not defined in the Code, but it may be taken to mean the party interested to support the order sought to be vacated or modified upon the application for review. Now, what was the order in the present case which was sought to be recalled by the appellants and what was the order which they endeavoured to get substituted in lieu thereof. The order which they prayed might be recalled was to the effect that the appeal be summarily dismissed; and the order which they wished to have substituted in its place was that notice of the appeal be served upon the respondent and that the appeal be heard on the merits after the record had been received. Can it be contended reasonably that the respondent was the opposite party within the meaning of the expression in the proviso to Rule 4 of Order XLVII, that he was in fact interested to appear and support the order of summary dismissal, when the only order sought to be substituted therefore was that the appeal be heard in his presence? In our opinion, the question must be answered in the negative. If we acceded to the contention of the respondent, the result would be that he would be subjected to needless harassment from which the Legislature intended to protect him by the introduction of Rule 11, Order XLI of the Code. If it is obligatory upon the Court to issue notice upon the respondent when an application is made to review an order of dismissal under Rule 11 of Order XLI, the respondent must appear in answer to the Rule to support the order of dismissal without the record before the Court; and if the Rule is made absolute and the appeal directed to be heard in the presence of the respondent, he would have to appear a second time to support the decree under appeal. This result could never have been intended by the Legislature. The view we take is in accord with that adopted in Joy Coomar Dutta Jha v. Esharee Nund Dutta Jha 10 B.L.R. 155 : 18 W.R. 475, where it was ruled that an application for review of an order of dismissal under Section 25 of Act XXIII of 1861), which corresponds to Rule 11 of Order XLI of the present Code could be granted without the issue of any notice to the respondent. That procedure has been followed in numerous cases in this Court during the last 40 years, though we are informed that latterly in one or two solitary instances, amongst which may be mentioned Abdul Hakim v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C. 433, the view has been taken that notice of the application for review should be issued upon the respondent. We are clearly of opinion that what has been the practice of the Court for a long series of years is in conformity with the law and that we should not depart from it. We may further point out that if the objection urged by the respondent were well founded, we could not give effect to it; for as was pointed out in the case of Haldhur Jha v. Syed Shah Mahammad Ashraf Alam 25 Ind. Cas. 880 : 22 C.L.J. 95 where a similar objection was unsucessfully taken, the point must be urgred before the Division Bench which granted the review; it is that Bench alone which can consider the propriety of the order previously made and either maintain or vacate the original order of dismissal. The respondent has made a faint attempt to develop an anology between an ex parte order granting a review and an ex parte order directing that an appeal be registered though filed beyond the period of limitation or on a memorandum insufficiently stamped: on this basis, it has been argued that in the former, precisely as in the latter, class of cases the respondent is not bound by the order made in his absence and is competent to question its validity when the appeal is called on for final disposal in his presence. But, plainly, there is no real analogy between the two classes of cases. It cannot be maintained for a moment that the order in the present case was made without jurisdiction and we are not prepared to adopt the view indicated in Abdul Hakim v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C. 433 that the order made without notice is a nullity. Even if the contention of the respondents that notice is essential is well founded, it shows at best that the order has been made irregularly or with material irregularity in the exercise of the jurisdiction possessed by the Judges who granted the review. That order, consequently, can neither be ignored nor vacated by us. But it is not necessary to deal with this aspect of the case in fuller detail, because in our opinion the order was properly made, though notice of the application for review was not served on the respondent.
4. As regards the second objection that the appeal should be restricted to the single ground which was made the basis of the application for review, we are of opinion that it is entirely unfounded. No doubt, it was ruled by this Court in Bhubaneshwari Koer v. Ajodhya Singh 11 Ind. Cas. 102 : 15 C.L.J. 339 that an application for review may be granted in part; and, as pointed out in Sheikh Sadaniddin v. Sheikh Ekramuddin 20 Ind. Cas. 670 : 19 C.L.J. 255 : 18 C.W.N. 22, whether the entire case is or is not re-opened when a review has been granted, must depend upon the circumstances of each individual case. But it is plain that in this case the entire appeal is open, because, as was pointed out in Lakhi Narain Sarongi v. Sri Ram Chandra Bhunya 11 Ind. Cas. 212 : 15 C.W.N. 921 : 14 C.L.J. 146, when an appeal is admitted under Rule 12 of Order XLI of the Code, the appeal cannot be restricted to one or more grounds specified in the memorandum of appeal: the whole appeal is before the Court when the case is taken up for final disposal. We hold accordingly that all the grounds taken in the memorandum of appeal may be considered by us.
5. We now turn to the merits of the appeal. The case was argued in the Courts below on the assumption that the land in dispute constituted an occupancy holding of one Arun Kanta Chandra, who granted a permanent sub-lease on the 3rd December 1899 to the first defendant. The case for the defendant is that at the time when this sub-lease was granted, he was already in occupation as a tenant and that the sub-lease did not create any new tenancy. This sub-lease contravened the provisions of Section 85 of the Bengal Tenancy Act, as it created a term exceeding nine years and would not have been admitted to registration if it had been stated in the document that the grantor was an occupancy raiyat. But the title of the defendant does not depend upon the sub-lease. He has been in possession from a period antecedent to the lease upon payment of rent to his grantor, and has thus acquired the status of at least an under-raiyat. The question is, whether the plaintiff is entitled to eject him.
6. The plaintiff purchased the holding at a sale held in execution of a decree for arrears of renton the 21st January 1901 and instituted this suit on the 4th December 1941 to eject the defendant as a trespasser. It is plain that there is no room here for the application of the principle recognised in Manik Borai v. Bani Charan Mandal 10 Ind. Cas. 469 : 13 C.L.J. 649 and Arab Ali v. Rachimaddi 10 Ind. Cas. 562 : 13 C.L.J. 656, namely, that when a person has granted a lease on the allegation that he had such interest as entitled him to create a valid lease in favour of the grantee, the doctrine of estoppel operates between the grantor and grantee; in other words, that it is not competent to the grantor to show that the recitals in the document as to his status are incorrect and that on the true state of facts, he had no authority to create the lease. Here the question does not arise between the grantor and the grantee, and the sub-lease is consequently liable to be attacked as void, on the principle explained in Jarip Khan v. Dorfa Bewa 15 Ind. Cas. 476 : 17 C.W.N. 59 : 16 C.L.J. 144 and Telam Pramanik v. Adu Shaikh 18 Ind. Cas. 791 : 17 C.W.N. 468. The plaintiff is a purchaser at a sale held in ! execution of a decree for arrears of rent and we have to investigate his rights and privileges. In this connection, our attention has been invited to two classes of cases, where two distinct principles have been re-cognised. In the first class of cases, namely, in Amirullah Mahomed v. Nazir Mahomed 31 C. 932, Amirullah Mahomed v. Nazir Mahomed 34 C. 104 : 3 C.L.J. 155 and Lal Mahomed Sarkar v. Jagir Sheikh Mallik 2 Ind. Cas. 654 : 13 C.W.N. 913 the doctrine was recognised that the landlord of an occupancy raiyat, who has : purchased the interest of the raiyat and is thus brought into direct contact with the under-raiyat inducted on the land by the occupancy raiyat, cannot, in view of the provisions of Section 22 of the Bengal Tenancy Act, seek the benefit of Sub-section (1) of Section 85, which provides that if a raiyat sub-lets otherwise than by a registered lease the sub-lease shall not be valid against the landlord, unless made with the landlord's consent. In the second class of cases, namely, Peary Mohun Mookerjee v. Badul Chandra Bagdi 28 C. 205 : 5 C.W.N. 310, Gangadhar Mandal v. Rajendra Nath Ghosh 19 Ind. Cas. 652 : 17 C.W.N. 860 and Fakir Chandra Singha Roy v. Banamali Sain 21 Ind. Cas. 104 : 18 C.L.J. 252 : 19 C.W.N. 412, the principle is enunciated that when a landlord purchases the occupancy holding at a sale in execution of a decree for arrears of rent, it is not necessary for him to annul the interest of the under-raiyat as an encumbrance, because it is an interest which is not valid against him by virtue of Sub-section (1) of Section 85. The case before us is not covered by either of these two principles. We have not here to deal with the case of a landlord who has purchased by private alienation or at a sale held in execution of a decree for arrears of rent. We have to investigate the case of a stranger who has purchased at a sale held in execution of a decree under Chapter XIV of the Bengal Tenancy Act. His rights are clearly regulated by the provisions of that Chapter. Section 159 provides that where a holding is sold in execution of a decree for arrears due in respect thereof, the purchaser shall take subject to the interests defined as 'protected interests', but with power to annul the interests defined as encumbrances. Section 160 defines protected interests. Section 161 defines the term encumbrance' to mean a lien, sub tenancy, easement or other right or interest created by the tenant on his tenure or holding in limitation of his own interest therein and not being a protected interest therein as defined in Section 160. The sale in this case was held under Chapter XIV, and, consequently, must be deemed to authorise the purchaser to annul all encumbrances mentioned in Section 161. But the plaintiff contends that as he is a purchaser at the instance of the landlord, he is the landlord within the meaning of Section 85 and that as against him the sub-tenancy of the defendants is not valid. To give effect to this contention of the respondent, it would be necessary to read into Section 85 words which do not find a place there. We should have to read and construe Section 85 as if it provided that sub-leases by the occupancy-raiyat shall not be valid against his landlord nor as against a person who has purchased at a sale in execution of a decree for arrears of rent held at the instance of the landlord. The obvious answer to the contention of the respondent accordingly is that these or similar words are not in Section 85. The substance of the argument is a choice between two conflicting positions. One possible view is that as the sub-tenancy is not valid against the landlord when he takes proceedings to enforce the decree for arrears of rent and brings the holding to sale, he does so on the assumption that the subs tenancy does not exist; that is, he acts in a manner contrary to the express language of Section 159. The other possible view is that the landlord acts in conformity with Section 159 and that the property is sold with liberty reserved to the purchaser to annul the sub-tenancy. If the landlord himself happens to purchase, it becomes superfluous for him to proceed in the manner provided in Section 167 by service of notice upon the encumbrancer, because as soon as he is brought into direct contract with the sub-tenant, he is entitled to take up the position that the sub-tenancy as against him is not valid. On the other hand, if the property passes into the hands of a stranger, he takes the requisite steps under Section 107 to annul the sub-tenancy. This view does not involve any hardship upon the purchaser, nor does it tend to depreciate the value of the holding as was apprehended by the respondent. We may add that the question which now requires decision was left open for consideration in the case of Fakir Chandra Singha Roy v. Banamali Sain (sic) and after full consideration of the arguments addressed to ns, we are of opinion that it should be answered against the respondent.
7. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored with costs both here and in the Court of Appeal below. The effect of our decision will be that the defendants will be tenants under the plaintiff in respect of the first seven parcels of land.