D. Chatterjee, J.
1. An occupancy holding not transferable by the custom of the locality was inherited by three brothers, defendants Nos. 1, 2 and 3. They jointly sold a portion of the jote to defendants Nos. 12 and 13 and established sub-ryots of whom defendant No. 6 is one. The name of defendant No. 1 alone, however, was recorded in the sherista of the landlord, who brought suits against defendant No. 1 alone and obtained decrees some of which were satisfied by all the brothers, while in execution of the last of such decrees he sold the jote and purchased it himself and after obtaining delivery in execution settled the jote with the plaintiff, who brings this suit for possession. The Courts below have decreed the suit and hence this appeal by defendants Nos. 2, 3, 6, 12 and 13, principally on the ground that as against them the suit should have been held as barred by limitation in that the landlord had obtained only symbolical possession which was of no avail against them as they were no parties to the suit.
2. It has been found that defendants Nos. 2 and 3 were represented by defendant No. 1 so far as the landlord was concerned. It has also been found that the suit was within time from the date of the symbolical possession. The appellants contend that they are strangers to the suit and are not bound by this symbolical possession and as they have been in possession for more than twelve years, the suit is barred by limitation as against them and their possession cannot be interfered with. Reliance is placed in support of this contention on the case of Mir Wazir-ud-din v. Lala Deokinandan 6 C.L.J. 472. It was held in this case that symbolical possession does not in any way affect the possession of, or give start to a fresh period of limitation against, persons who are not parties to the suit or execution proceedings, notwithstanding that such persons may be bound by the result of the litigation terminating in the delivery of formal possession. The ratio decidendi in this case and the cases therein relied on was that the person who is a party to the proceeding must be considered as having been present at the delivery. Another reason relied on by the learned Judges in this case was that under-leases and encumbrances are not avoided ipso facto by the sale but must be got rid of by a further suit or proceeding. Now let us see how these principles apply to the present case.
3. Defendants Nos. 2 and 3 are the unregistered co-sharers of the registered tenant, defendant No. 1. The Courts below have held that they elected to be represented in their relations to the landlord by their brother, defendant No. 1. This is equivalent to saying that defendant No. 1 stood in the place of all the brothers including himself in the rent suit and all further proceedings including the delivery of possession. Their interest would cease ipso facto by the sale and no further suit or proceeding would be required to get rid of them. They are neither encumbrancer nor under-lessees. They are to my mind parties in the name of their elder brother and cannot be heard to say that they are strangers. It is true that they plead a separation from their brother and separate possession on their own behalf, but they allowed their elder brother to represent them in all matters connected with their landlord in relation to the lease-hold property. It would, I think, be unjust to allow them to resile from the position in which by their conduct they have placed themselves apart, of course, from any question of fraud or collusion which has not been raised in this case.
4. Then comes the case of defendant No. 6. Paragraph 5 of the plaint states that defendant No. 6 has his house on dag No. 11 and paragraph 6 that he is not a bona fide tenant but a trespasser. This defendant did not appear in the first Court, but the plaintiff gave no evidence to prove that he was not a bona fide tenant but a trespasser who had been falsely set up as a tenant. On the other hand the plaint admits that he has his house on one of the plots and that he set up a sub-tenancy. 1 think, therefore, he must be taken as an under-tenant who can plead his possession as a stranger to the suit. The case of Mir Wazir-ud-dm v. Lala Deokinandan 6 C.L.J. 472, therefore, comes to his rescue and the plaintiff's suit to turn him out is barred.
5. As regards defendants Nos. 12 and 13 they are purchasers of portions of the holding long before the suit. The landlord did not recognise them and was not bound to recognise them: he was entitled to treat them as trespassers and has treated them as such in the plaint. They are, therefore, admittedly strangers and although they would be bound by the result of the suit and liable to be turned out, that must be by a separate suit within 12 years from at least the sale when the title of the purchaser began and when at least he would be entitled to evict any trespasser. The suit was filed just in time from the date of the writ of delivery of possession and, therefore, beyond 12 years from the sale and the suit is, therefore, barred against defendants Nos. 12 and 13 and the plaintiff cannot turn them out.
6. The appeal of defendants Nos. 2 and 3 must, therefore, be dismissed and the appeal of defendants Nos. 6, 12 and 13 decreed with costs: as all the appellants appeared by one vakalatnamah, defendants Nos. 6, 12 and 13 will get 3/5ths of the hearing fee and defendants Nos. 2 and 3 will pay 2/5ths of the hearing fee to the respondents.
7. I agree.