1. These two appeals arise out of a suit under Section 106, Ben. Ten. Act. The dispute relates to the entries in Khatian No. 312 of mouja Sahapore, J.L.S. P.S. Behala. The khatian is Ex.20 in this case. It records defendant 2, Rai.Manmathanath Mitra Baha-dur, owner of touzj No.93 in 5 annas 6 pies share and defendant 3, Nagendranath Palit, owner of touzi NO.101 in 10 annas 6 pies share as the landlords, Kumudini Dasi as the tenant in possession, Rs.43-4-1 as the rent payable for the tenancy and 2.02 acres as the area of the lands comprising the tenancy. The status of the tenant is recorded as tenure-holder and the rent is recorded as liable to enhancement.
2. The plaintiffs' ease is that their uncle Kedarnath Haldar was the real tenant. Their uncle Kedarnath Haldar and after him his widow Basanta Kumari having died before the Cadastral Survey leaving no children, they inherited the estate of Kedarnath and thus became entitled to and came into possession of the tenancy in question at the date of the Cadastral Survey. Consequently, their name should have been recorded as tenants in the place of the name of defendant l Kumu-dini Dasi. The tenancy in question was admittedly sold in execution of a decree for its own arrears of rent in 1903 and the certified auction-purchaser at that sale was one Jadu-nath Sen. This Jadunath Sen in 1904 executed a deed of release (Ex.C) in favour of one Rashbehari Mitter, husband of defendant 1, stating that the purchase was with the money of and for the benefit of Rashbehari.
3. The plaintiffs' case is that the purchase was really with the money of and for the benefit of Kedarnath Haldar, that Jadunath Sen was merely a benamidar of Kedarnath and that the release (Ex.C) from Jadunath was really taken by Kedarnath in the benami of Rashbehari, that on Eashbehari's death his widow, defendant 1, executed another release (Ex.l) whereby she admitted all these facts and relinquished her claim to the tenancy in favour of the real purchaser Kedarnath Haldar in 1916, and that since the purchase Kedarnath Haldar and after him his heirs and successors including the plaintiffs have all along been in possession of the tenancy by exercising various acts of possession and of ownership. As regards the entries relating to the amount of rent payable and the area for which it is payable the plaintiffs' case is that originally the rent payable was Rs.49-2-13 for an area of 19 bighas 4 cottas and 8 chhataks. After the aforesaid auction sale a portion of the lands of this tenancy was acquired by the Government for K.R. Railway and Kedarnath Haldar sold away portions to different persons. The landlords, defendants 2 and 3, gave kharij to these purchasers. After all these transfers and acquisitions only 2.2 acres of land are now left as comprising the tenancy in possession of the plaintiffs, for which Rs.15 is the rent payable. The plaintiffs also questioned the entry relating to the incidents of the tenamey. The issue was decided against them by the Court of first instance and it is no longer in dispute in the appeal before me. The Cadastral Survey record was finally published on 21st August 1931 and the present suit was instituted on 2lst December 1931.
4. Defendant 1, Kumudini Dasi, appeared and filed a written statement on 15th December 1932, stating inter alia that she had sold away her interest in the tenancy to one Sarat Chandra Mitra on 1st October 1931. She thus disclaimed all present interest in the property. She however denied all the allegations of the plaintiffs relating to the title of Rashbehari and Kedarnath and asserted that her husband was the real purchaser. Defendant 2, Kumar Manmathanath Mitra Bahadur, filed his written statement on 28th September 1932, contesting the claim of the plaintiffs and defendant 3, Nagendranath Palit, filed his written statement on 12th November 1932, denying the plaintiffs' title to the tenancy. On 17th March 1933, Sarat Chandra Mitra, who was set up by defendant 1 in her written statement as the purchaser of the tenancy, was added as a party to the suit as defendant 4. The Revenue Officer recorded the following order:
It appears from the written statement of defendant 1 that she sold away her interest to one Sarat Chandra Mitra before the institution of the suit. As the alleged interest devolved upon Sarat Chandra Mitra subsequently to the final publication of the record of rights he is not a necessary party but he is a proper party and it is desirable that the suit should be heard in his presence. Add him as a party defendant to this suit.
5. Sarat Chandra Mitra appeared and filed his written statement on 4th April 1933, denying the allegations of the plaintiffs and asserting inter alia in para. 4 of his written statement that he having purchased the tenancy on 1st October 1931, before the institution of the suit, and the plaintiffs not having made him a party within four months from the date of the publication of the Cadastral Survey record, the suit as against him was barred by limitation. On 26th April 1933, the suit was heard on two preliminary issues, viz. (1) Is the suit barred by limitation? (2) Is the suit bad for non-joinder of the undertenants under Khatian No.312? The Court of first instance decided issue 1 in favour of the plaintiffs on the ground that as this was not a suit for possession but for correction of the record of rights and as Sarat Chandra purchased the tenancy after the final publication of the Cadastral Survey Record, though before the institution of the suit, he was only a proper party and not a necessary party. It, however, decided issue 2 against the plaintiffs and dismissed the suit. This decision of the Settlement Officer was upheld by the Court of appeal below. On further appeal to this Court in S.A.No. 1502 of 1934, this Court on 3rd December 1936, set aside this decision holding that the suit was not liable to be defeated by reason of the non-joinder of parties. The suit was remitted to the trial Court to be reheard according to law with the observation that the then appellants (the plaintiffs) were entitled to all the reliefs the Courts were in a position to give them against the parties who were on the record.
6. During the pendency of the S.A.NO.1502 of 1934 in the High Court defendant 2, Kumar Manmathanath Mitra, died and in his place his sons including Sarat Chandra Mitra were substituted as defendants 2 (ka) to 2 (chha). Thereafter defendant 1, Kumudini Dasi, died and on 26th April 1937, the plaintiffs made an application under Order22, Rule 4, Civil P.C, for the substitution of defendant 4, Sarat Chandra, in her place as her legal representative. The Court by its Order dated 2nd December 1937, allowed this application and the substitution was accordingly made. Sarat Chandra Mitra thus became defendant 4,2 (ka) and 1 in the suit when the suit was heard after remand by the High Court. S.A.NO.812 of 1940 is by Sarat Chandra Mitra in his personal capacity. S.A. No.813 of 1940 is by defendant 3 and the legal representatives of the original defendant 2.
7. Various defences were taken by the defendants and the suit went to trial on the following questions: (1) Is the suit maintainable under Section 106, Bengal Tenancy Act? (2) Was the alleged release executed in favour of Kedarnath Haldar? If so, is the said document valid and bona fide and was the same acted upon? (3) Has Kumudini Dasi been wrongly recorded as possessor in Khatian No.312 of Mouza Sahapore P.S.Behala? Are the plaintiffs in possession of the Khatian? (4) Is the rent of the khatian fixed in perpetuity? (5) Is Rs.15 the rent of the khatian? (6) Are plots Nos. 586 and 591 of mouza Sahapore in possession of the plaintiffs? If so, do they appertain to khatian NO.312? (7) Is the suit barred by limitation? (8) Are the plaintiffs estopped under Section 41, T.P. Act, from challenging the title of Sarat Chandra Mitra as purchaser of the tenancy from the admittedly ostensible tenant Kumudini Dasi? As regards question No.6, the Assistant Settlement Officer found that the plots were already recorded in khatian No.312. There is now no dispute regarding this fact. Question NO.4 was decided against the plaintiffs by the Assistant Settlement Officer and that matter is also not before me in these appeals. Question No.7 was decided in favour of the plaintiffs on the ground that the issue as to limitation was no longer open for decision after the Order of remand by the High Court. Question No.5 was decided partly in favour of the plaintiffs. The Assistant Settlement Officer held that the area now comprising the tenancy in possession of the plaintiffs was 2.2 acres or 6 bighas 2 cottas and 3 chhataks and that the proportionate rent payable for khatian No.312 would be RS.18-11-0.
8. All the other questions were decided in favour of the plaintiffs and their suit was decreed by the Assistant Settlement Officer who ordered as follows: (1) (a) That in place of the recorded tenant Kumudini Dasi plaintiff 1 and the legal heirs of the original plaintiff 2 who have already been made parties will be recorded; (b) That plaintiff 1 will have 8 annas share in the jama and the legal heirs of plaintiff 2 will have the remaining 8 annas in equal shares. (2) That the status of the tenure will remain unaltered. (3) (a) That in place of the recorded rent of Rs.43-4-0 RS.18-11-0 will be noted as the rent payable; (b) That the share payable for Touzis NOS.93 and 101 will be according to the share of these touzis already recorded in the khatian (i.e., 5 annas 6 pies for Touzi NO.93 and 10 annas 6 pies for Touzi No.101). This Order was repeated in Bengali with the addition of the following words at the end: Aie hhazana 1345 saler paila Baishak haoite prapya hoibe (this will be effective from 1st Baisakh 1345 B.S.).
9. The present appellants preferred two separate appeals from this decision and the learned District Judge by his judgment dated 16th January 1940, dismissed these appeals and confirmed the above decision of the Assistant Settlement Officer. Mr.Bose, appearing in support of the appeals before me, raises the following points, namely: (1) (a) That the relief claimed in prayers Kha' and 'ga' of the plaint is not available in a suit under Section 106, Ben. Ten. Act; (b) That the relief granted in respect of these prayers is not supported by the evidence on the record and is not according to the case made by the plaintiffs; (c) That in any event the Court of appeal below went wrong in maintaining the last Clause in the Order of the Assistant Settlement Officer to the effect that the rent of Rs.18-11-0 should be effective from 1st Baisakh 1345 B.S (2) (a) That the Courts below went wrong in holding that the issue as to whether or not the suit was barred by limitation was no longer open for decision after remand by the High Court; (b) That Sarat Chandra Mitra as representing the tenancy having been brought on the record more than four months from the date of the final publication of the record, the suit as against him was barred by limitation under Section 106, Ben. Ten. Act. (3) (a) That as the title claimed by Sarat Chandra Mitra and the original defendant 1 Kumudini Dasi is a title under a purchase certified by the Court and as the plaintiffs claim on the ground that the purchase was made on behalf of Kedamath Ilaldar through whom the plaintiffs claim, the suit is not maintainable under Section 66, Civil P.C.; (b) That the Court of appeal below went nwrong in holding that the present Section 66, Civil P.C, was not applicable to this suit as the sale in question was held in 1903 before the present Code of Civil, Procedure came into force; (4) (a) That the Court of appeal below went wrong in deciding in favour of the plain, tiffs without considering the question whether or not Kedarnath Haldar was the real purchaser as alleged by the plaintiff's; (b) That the Courts below went wrong in not raising and trying the material issue in the case, viz., whether Kedarnath Haldar was the real purchaser at the execution sale as alleged by the plaintiffs; (5) That inasmuch as a release is not a transaction required by law to be by a registered instrument, the Court of appeal below went wrong in deciding the question whether or not the plaintiffs were estopped under Section 41, T.P. Act, from denying the title of Sarat Chandra acquired by his purchase from the admittedly ostensible tenant Kumu-dini, on the sole ground that the alleged deed of release of 1916 having been a registered instrument, Sarat Chandra, the purchaser in 1931, must be deemed to have purchased with notice of the real title.
10. Second Appeal No.812 has no concern with the points 1 (a) (b)and(c).
11. The relevant portion of Section 106, Bengal Tenancy Act, stands thus:
In proceedings under this Part, a suit may be instituted before a Revenue Officer at any time within tour months from the date of. the certificate of the final publication of the record of rights under Sub-section (2) of Section 103A of this Act, by presenting a plaint on stamped paper for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from, the record,
whether such dispute be between landlord and tenant...or between tenant and tenant, or as to whether the relationship of landlord and tenant exists...or as to any other matter....
12. Prayers 'kha' and 'ga' in the plaint are the following:
(kha) It may be decreed and ordered that the landlords defendants 2 and 3 are entitled to an annual rent of Rs.15 only for the lands in suit (ga) It may be decreed, and ordered in favour of the plaintiffs that defendants 2 and 3 are entitled to recover from the plaintiffs annually Rs.15 only as rent for the disputed property.
13. These two prayers are practically the same. The question is whether they can be said to be 'for the decision of any dispute regarding any entry.' If so, then certainly such prayers will he within the scope of a suit under Section 106, Bengal Tenancy Act. Obviously these prayers relate to the entry recording the amount of rent payable for the tenancy. The entry under this head shows Rs.43-11-0 as the amount of rent payable. The plaintiffs in para.3 of their plaint dispute the correctness of this entry and assert that the amount should be Rs.15. In that paragraph of the plaint they plead their reason for saying that the amount should be Rs.15. In my opinion, by these prayers the plaintiffs are seeking only a decision of their dispute regarding the entry as to the amount of rent payable. The decision will not be a settlement of rent within the meaning of Section 113, Bengal Tenancy Act, but will only settle the dispute as to what should be the correct entry under the head 'amount of rent payable.' Such a dispute is within the scope of a suit under Section 106, Bengal Tenancy Act: Joy Chandra v. Srijufc Kumar Arun Chandra. 67 I.C. 241, Bisheswar Bay v. Bajendra Kumar ('14) 1 A.I.R 1914 Cal. 851 and Upendra Lal v. Jogesh Chandra ('18) 5 A.I.R. 1918 Cal. 799 Herein lies the difference between Section 105 and Setion 106 in this respect. Section 105 proceeds on the assumption that the entry is correct. It settles a fair and equitable rent and that becomes a new settlement of rent.
14. The Assistant Settlement Officer decided that the rent payable for Khatian No.312 will be Rs.18-11-0 for 2.02 acres or 6 bighas 3 cottas and 3 chhataks of land which is recorded to be the present land of the tenancy. He proceeded with the finding that originally the area of the tenancy was 19 bighas 4 cottas and 8 chhataks and for this area the rent payable was RS.49-13-1. Of this Rs.16-14-11 was payable to the proprietors of Touzi No.93 in their 5annas6 pies share and Rs.32-14-2 was payable to the proprietors of Touzi No.101 in their 10annas6 pies share. A portion of this area was subsequently acquired for the Port Commissioners and after this acquisition the area of the tenancy became 14 bighas 1 cotta and 15 chhataks. It is in evidence that the rent payable to the proprietors of Touzi No.93 was reduced as the result of this acquisition to Rs.12-4-0. This reduced rent of Rs.12-4-0 bears the same proportion to the original rent of Rs.16-14-11 payable to the proprietors of this touzi as the reduced area 14 bighas 1 cotta and 15 chhataks bears to the original area 19 bighas 4 cottas and 8 chhataks. This shows that the reduction in rent was proportionate to the reduction in area. Applying this proportion, the total amount of rent payable for 14 bighas 1 cotta and 15 chhataks becomes RS.43-4-1. This is the rent recorded in the cadastral survey Khatian No.312. The Assistant Settlement Officer thence concluded that this was the rent payable after the land acquisition proceedings. Thereafter, however, the area of tenancy has decreased from 14 bighas 1 cotta and 15 chhataks to only 6 bighas 2 cottas and 3 chhatakas as is shown by the entry as to the area. But the entry as to the amount of rent retains the old figure Rs.48-4-1. The Assistant Settlement Officer, therefore, concluded that this entry was wrong. In Order to decide what should be the correct figure he applied the Rule of proportion and found Rs.18-11-0 to be the amount payable for the present area. He seems to have followed the principle of Section 52 (4), Ben. Ten. Act. On appeal the learned District Judge affirmed this decision of the Assistant Settlement Officer. He observed:
It is said that the rent fixed by Mr.Duval in 1916 is being paid all along; but there ia no doubt that the area has been reduced by acquisitions and the reduction of rent is quite justified.
15. Mr.Bose contends that both the Courts have gone wrong in this respect. He contends that the learned District Judge is hopelessly wrong in saying that the area has been reduced by acquisitions. It is the case of neither party that there was any acquisition of the land of this tenancy after the acquisition for the Port-Commissioners. The rent became Rs.43-4-0 after and as a result of that acquisition. Mr.Bose further contends that the Assistant Settlement Officer was right in holding that as a result of the acquisition the rent became RS.43-4-0. But after that he ignored the case made by the plaintiffs altogether and proceeded on an entirely new case which the defendants had no opportunity of meeting. It must be said that Mr.Bose's criticism of the appellate judgment on the point is correct. It is the case of neither party that the reduction in area from 14 bighas odd to 6 bighas odd was due to any further acquisition of the land of the tenancy under the Land Acquisition Act. The case of the plaintiffs will appear from para.3 of their plaint. There they ascribe this further reduction to their own act, namely, to sales of different portions to different persons by their predecessor Kedamath. Prima facie these sales would not sever the lands sold from the tenancy and would not entitle either the vendor or the purchasers to claim any splitting up of the tenancy. The reduction by this process would not entitle the tenant to claim any reduction in rent. The entry as to the area in such a case will be wrong if it does not include the portions sold away. The plaintiffs' case is that after these sales the landlords allowed splitting up and the rent was accordingly re-adjusted. This must have been by the act of the parties and in Order to entitle the plaintiffs to any relief on this count they must establish the case made by them in the plaint. Otherwise the entry in Khatian No.312 as to the amount of rent payable will be unimpeachable, though the entry as to the area will be wrong if it does not include the lands thus sold away. In my judgment, therefore, the Assistant Settlement Officer went wrong in applying to this case the Rule of proportion as laid down in Section 52 (4), Ben. Ten. Act. The plaintiffs must, first of all, make out the case which would entitle them to split up the rent. Otherwise, the rent payable must be Rs.43-4-0 and for this amount the lands of Khatian No.312 as also the lands sold away shall equally remain under liability.
16. Mr.Bose, in my opinion, is also correct in saying that the Order that the rent of Rs.8 odd will come into effect from 1st Baisakh, 1345 B.S. is uncalled for in this case. As I have pointed out above, the rent found payable in a suit under Section 106, Ben. Ten. Act, is not a rent settled, but is the existing rent about which there was a dispute and that dispute is settled. Of course the Order to a certain extent is in favour of the landlord, inasmuch as it does not affect his right to recover at the recorded rate for the past period. But it may prejudice his right to have further settlement of rent by attracting the operation of Section 113, Ben. Ten. Act. This portion of the Order cannot therefore be allowed to stand.
17. Coming now to the second point taken by Mr.Bose, it appears to me that the Courts below were right in disallowing the defendants to re-agitate the question after remand by the High Court. As has been pointed out above, the issue as to limitation was specifically raised and decided against the defendants by the Assistant Settlement Officer by the very judgment in which he decided the issue as to the non-joinder of parties in their favour. The High Court decided this last named issue against the defendants. The defendants would have averted this defeat if they could successfully set up the other issue decided against them by the Courts below. The decision of the High Court is supportable only if both the issues raised there be taken to have been decided against the defendants. The issue as to limitation was decided against the defendants by the Courts below. The other issue was expressly decided by the High Court against them. The final result implied an acceptance by the High Court of the decision of the Court below on issue 1. As regards the fifth point raised by Mr. Bose, it must be confessed that there is much substance in what Mr. Bose contends. I am not sure if a release of the kind in question in this suit is at all a transaction relating to immovable property. In any case it is not a transaction required by law to be by a registered instrument, and consequently Sarat Chandra shall not be affected with constructive notice by the registered deed of release under Expln. 1 of Section 3, T.P. Act. The question, however, does not, in my opinion, arise in this suit at all. In this suit we are concerned only with the state of affairs existing at the date of the final publication of the Cadastral Survey record. The only question about which an issue can be raised and decided in this suit is whether the person entered as tenant in the Cadastral Survey record was the tenant in possession at the date of the final publication or whether the claimant was in possession as tenant. If defendant 4, Sarat Chandra, acquired any right to defeat the claim of the plaintiffs by the doctrine of estoppel on account of any subsequent event, that does not fall to be decided in this case. In my opinion, the Courts below went wrong in allowing the parties to raise this issue in the present case. Their decisions on this question are therefore set aside and the question is left open for being agitated in any future litigation between the parties.
18. Coming now to the fourth point urged by Mr. Bose, I must say that there has really been no decision in this case on the question of benami raised by the plaintiffs. The Assistant Settlement Officer did not even raise any issue on this point. He proceeded on the footing that in a suit under Section 106, Ben. Ten. Act, the material question was whether the plaintiffs were the tenants in possession at the date of the final publication. The Assistant Settlement Officer found that the plaintiffs' predecessor Kedarnath Haldar and after him the plaintiffs have all along been in possession of the tenancy since the alleged auction purchase and exercised several acts of possession and of ownership in respect of the lands of the tenancy. These findings have been confirmed by the learned District Judge. In my opinion the present suit only calls for a decision on the question of possession and that decision has been given by the Courts below in favour of the plaintiffs. The dispute as to the title thus to possess does not fall to be decided in this suit, and has not been decided here. The question of benami only affects the question of the plaintiffs' title to possess and does not affect the factum of possession in the character of a tenant. In my opinion, therefore, the Courts below did not commit any error in not raising and deciding the question whether the purchase by Jadunath Sen was with the money of Kedarnath Haldar and on his behalf. That question remains open between the parties and the parties may get the same decided in any appropriate proceeding if so advised. In the view I have taken of the fourth point the third point raised by Mr. Bose also does not fall to be decided in this ease.
19. Section 317, Civil P.C., 1882, stood thus:
No suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person or on behalf of some one through whom such other person claims.
In the Code of 1859 (Act 8 of 1859), Section 260 contained the corresponding provision thus:
The certificate shall state the name of the person who at the time of sale is declared to be the actual purchaser, and any suit brought against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.
The corresponding present Section 66(1) stands thus:
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 or on behalf of some one through whom the plaintiff claims.
Mr.Bose contends that the provision only affects the maintainability of a suit of the nature contemplated by the section. It is a part of the adjective law and consequently it is the law of the time when the suit is insti-tuted and not the law of the time when the sale in question took place that shall govern the matter. The question is not free from difficulty. It may be contended on the other hand that the provisions contained in Section 66, Civil P.C, and the corresponding provisions in Section 317 of the Code of 1882 and in Section 260 of the Code of 1859 are not mere adjective law. When any auction purchase is made by a person with the money of another and on behalf of and for the benefit of that other a jural relation comes into existence between the real and the ostensible purchaser and rights and liabilities arise out of this jural relation. The real purchaser also acquires a right in rem, a right to the ownership of the property itself. The real purchaser will have reliefs and remedies in respect of these rights. His remedy by a suit in respect of this right is restrained by there provisions. Section 6, General Clauses Aet (Act 10 of 1897) says:
Where this Act or any...Act...repealsany enactment...then unless a different intention appears, the repeal shall not...affect any...remedy in respect of any such right...and any such...remedy may be instituted...or enforced...as if the repealing Act...had not been passed.
20. Of course this saving of the remedy applies only when the repealed Act itself provided the remedy. If the repealed Act simply enacted some restraints or limitations in respect of a remedy otherwise provided, the repeal will remove those restraints and limitations. The question then will be: what will be the effect of any new restraint imposed? But it may be contended that as the sale in this case took place in 1903, the alleged real purchaser acquired right to the property in 1903 and had his remedy in respect of such right given him by Section 11 of the Code of 1882 read with Section 317 of that Code. His remedy then was affected only to the extent laid down in Section 317 of the Code of 1882. It was otherwise unrestricted. Sections 11 and 317, Civil P.C, 1882 were repealed by the present Code of 1908 and was re-enacted in its Section's 9 and 66. This repeal cannot affect his remedy under the old Code. Further apart from the above statutory provision, by the generel principle of non-retroactivity of a law, any right or liability arising out of a jural relation constituted before the new law came into force or created by a jural fact or event taking place before the new law or any relief or remedy in respect of that right or liability remains unaffected by the new law. But I have my doubts if the remedy by a suit can be said to be conferred by any provision of the Code of Civil Procedure.
21. The question raised by Mr. Bose, however, is not res integra. In Promothanath Pal v. Mohini Mohan Pal ('20) 7 A.I.R. 1920 Cal. 433 Mookerjee A.C.J., Fletcher and Richardson JJ. held that where a sale took place and was confirmed before the Code of Civil Procedure of 1908 came into force it was Section 317 of the Code of 1882 that applied though the suit in question was instituted long after the Code of 1908 came into force. Mookerjee A.C.J. observed:
The position then is clear that at the time when the plaintiff acquired his title by purchase at the execution sale, he was subject to the restriction embodied in Section 317 that is, he had a title enforceable against the whole world, except the certified purchaser. When, however, the Code of 1908 came into force on 1st January 1909, Section 317 of the Code of 1882 was replaced by Section 66 of the new Code which introduced a restriction of a much wider scope...under the new Code the title of the real owner cannot be en-forced against the certified purchaser as also against persons who claim a title derived from the certified purchaser. The question thus arises, whether in these circumstances the wider restriction embodied by the Legislature in Section 66 of the Code of 1908 can be applied to cases where the title accrued under the Code of 1882 and was, at the time of its inception subject only to the restriction contained in Section 317 of that Code. In our opinion, the answer must be in the negative.
In this case also it was contended that these provisions embodied merely a Rule of procedure. This contention was overruled and it was observed thus:
In our opinion, this contention is based upon a narrow and superficial view of the true effect of Section 66 of the Code of 1908 and Section 317 of the Code of 1882. Each of these provisions no doubt finds a place in a Code of Procedure, but each imposes in essence a serious restriction upon the title of the real purchaser at the execution sale.
22. On the authority of this case it must be held that Section 66 of the present Code does not apply to the present suit. See also Manir Ahmmad v. Munshi Obedal Hoque ('35) 40 C.W.N. 470 (Rau J.). Mr. Bose contends that in the above cases the effect of the change in Section 107, Ben. Ten. Act, made by the amending Acts of 1907-08 whereby the words 'the Code of Civil Procedure, 1908' were inserted in the section was not at all considered. Section 107 as it originally stood in the Bengal Tenancy Act (Aet 8 of 1885) ran thus:
In all proceedings for the settlement of rents in this Chapter, and in all proceedings under the last foregoing section the Eevenue Officer shall...adopt the procedure laid down in the Code of Civil Procedure for the trial of suits....
23. After the amendment by Bengal Council Act 3 of 1898 the section stood thus:
In all proceedings for the settlement of rents under this Part, and in all proceedings under Section 106 the Revenue Officer shall...adopt the procedure laid down in the Code of Civil Procedure for the trial of suits....
24. After the amendment of 1907-08 the section stands thus:
In all proceedings under Section's 105, 105A and 106, the Revenue Officer shall...adopt the procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits....
25. Mr. Bose contends that as the section now specifically refers to the Code of Civil Procedure 1908, proceedings under Section's 105, 105A and 106, if instituted after 1908 would be governed by the provisions of the Code of 1908 and consequently Section 66 of the Code of 1908 shall apply to such a proceeding. That would be so if what Section 66 of the Code of 1908 lays down be only a matter of procedure. Section 107, Ben. Ten. Act, enjoins the Revenue Officer to adopt the procedure laid down in the Code of Civil Procedure, 1908. In the case reported in Promothanath Pal v. Mohini Mohan Pal ('20) 7 A.I.R. 1920 Cal. 433 referred to above, it was pointed out that the bar imposed by Section 66 of the Code of 1908 or ection 317 of the Code of 1882 is not a matter of procedure though the provision finds a place in a Code of Procedure. These provisions impose in essence a serious restriction upon the title of the real purchaser at the execution sale. In my opinion, therefore, the change in Section 107, Ben. Ten. Act, by the amendment of 1907-08 does not affect the authority of the decision in Promothanath Pal v. Mohini Mohan Pal ('20) 7 A.I.R. 1920 Cal. 433.
26. If we apply Section 317, Civil P.C., 1882, to this case then there is no doubt that it does not bar this suit. This suit is not against the certified purchaser. It is not even against any person claiming through or under such purchaser. Neither Sarat Chandra, the purchaser from Kumudini, nor his predecessors-in-interest can be said to claim title through or under the certified purchaser. They claim adversely to such purchaser.
27. Where Section 66 of the present Code of Civil Procedure applies the question to be considered will be not whether the defendant claims title under the purchaser certified, but whether he claims title under a purchase certified. Mr. Bose contends that though Sarat Chandra is neither the certified purchaser nor does he claim under the certified purchaser, yet certainly he claims title under the certified purchase. It cannot be denied that the words 'against any person claiming title under a purchase certified' substituted for the words 'agairust the certified purchaser' lend some support to the contention of Mr. Bose. The word in the present section is 'purchase' as against 'purchaser' in the old section. In a sense Sarat Chandra and his predecessors-in-interest claim title under the purchase. They do not claim any title de hors the auction-sale. They trace. their title to this sale and their case is that the purchase gave rise to a title in Rashbehari. According to this contention the section, as it now stands, bars a suit if both the parties rely on the auction-sale, and the plaintiffs claim title on the ground that the purchase was made on behalf of the plaintiffs, no matter what the defence case is, provided only that the defendant also traces his title to the same purchase. It cannot be denied that there is much force in this contention of Mr. Bose.
28. In my opinion, however, the present suit under Section 106, Ben. Ten. Act, is not a suit which requires to be maintained 'on the ground that the purchase was made...on behalf of some one through whom the plaintiffs claim' within the meaning either of Section 66, Civil P.C, of 1908 or of Section 317 of the Code of 1882. No doubt it has been alleged in the plaint that the purchase was on behalf of Kedarnath Haldar through whom the plaintiffs claim. But the relief that can be claimed in a suit under Section 106, Ben. Ten. Act, and that has been claimed in this suit is not grounded on this fact. The relief claimed in the present suit can be and is grounded only on the factum of possession in the character of a tenant irrespective of the question whether the plaintiffs had title to such possession. In my judgment, therefore, so far as the present suit is concerned, neither Section 317 of the Code of 1882 nor Section 66 of the present Code of Civil Procedure will stand in the plaintiffs' way.
29. In the result S.A.No.812 of 1940 is dismissed with costs and S.A.No.813 of 1940 is allowed in part. The judgments and decrees of the Courts below in so far as these decided: (1) that the amount of rent payable for the tenancy is Rs.18 (2) that the said amount is payable to defendants 2 and 3 in certain proportions, and (3) that the same is to be effective from 1st Baisakh 1345 B.S., are set aside, and the case is remitted to the Court of appeal below for the decision of the question as to the amount of rent payable for the tenancy keeping in view the observations made above in this respect. The parties will be given opportunities to adduce further evidence on this point. The questions whether Jadunath Sen purchased the tenancy at the auction-sale in 1903 with the money of, on behalf of and for the benefit of Kedarnath Haldar or Rashbehari Mitra, whether the plaintiffs are estopped under Section 41, T.P, Act, from denying Sarat Chandra's title by purchase from Kumudini and whether they are debarred under Section 41, T.P. Act, from avoiding the transfer by Kumudini to Sarat Chandra are left open.
30. In S.A. No. 813 of 1940 the parties will bear their respective costs in this Court. Further costs will be at the discretion of the Court of appeal below.