Macpherson and Stevens, JJ.
1. The respondent in each of these cases claimed a plot of land which formerly formed a part of the holding of persons called Naths who had a right of occupancy in it. The holding appertained to an estate, of which there were five proprietors having different shares. The ijaradar of a 13-anna odd gunda share belonging to some of those proprietors got a decree against the Naths for the rent due on account of his share, and in execution of that decree the holding was sold on the 28th January 1889 (16th Magh 1295) and purchased, as the Subordinate Judge finds, by the respondent. The respondent said he got into possession of these plots and held possession as a recognised tenant till he was dispossessed by the appellant and others in one case in Bysack 1297, and in the other in Bhadra 1298. The suits were instituted on the 18th Bhadra 1302, but none of the landlords of the holding are parties to them. The appellants claimed to he in possession under settlements obtained from the landlords and denied the respondent's alleged possession or dispossession. They also said that the respondent having purchased a non-transferable holding had acquired nothing by his purchase; that the landlords were necessary parties to the suits; and that the suits not having been brought within two years of the alleged date of dispossession were barred by limitation under Article 3, schedule III of the Bengal Tenancy Act.
2. The Munsif dismissed the suits, but the Subordinate Judge has reversed his decision:and given the respondent a decree in each case, holding that the suits were within time; that the landlords were not necessary parties; and that the respondent, although he purchased at a sale in execution of a decree obtained by one of several joint landlords for a fractional share of the rent, purchased the occupancy-holding and got a good title to it. The correctness of his decision in all these paints is now questioned.
3. We must take it that the Naths had no transferable right in the holding in question. The Munsif found this on an issue raised. The Subordinate Judge says the question is immaterial and does not deal with it, but we gather from his judgment that he did not intend to disturb the Munsif's finding, and it is not at all clear that the correctness of this was challenged. The case seems to have been argued on the assumption that the holding was not transferable by custom or local usage.
4. It is hardly necessary to cite authority for the general proposition that an occupancy-holding only becomes transferable by custom or local usage, but we may refer to the recent case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha (1897) I.L.R., 24 Cal., 355, in which a non-transferable holding was sold in execution of a decree for money, not rent, obtained by a creditor against the tenant. That case does not, however, touch the question now raised as to the effect of a sale of a non-transferable occupancy-holding in execution of decree obtained by one of several joint landlords against the tenant for the share of the rent separately payable to him in respect of the holding. If this was a sale under the Tenancy Act authorized by Section 65 of that Act, the purchaser undoubtedly purchased the holding and got a good title to it. If it was not such a sale the purchaser is, it seems to us, in the same position as any other person who purchases at an auction-sale a property in which the judgment-debtor to whom it belonged had no transferable interest.
5. There may be cases in which all the persons under whom a raiyat holds land are not joint landlords within the meaning of the Tenancy Act, but this is not one of them, and no such question has been raised. The circumstances that the ijaradar collected separately from the raiyats his share of the rent did not have the effect of creating a separate and distinct tenancy under him. The holding, notwithstanding that, continued to be one entire holding on all the joint landlords. This principle was recognised in the recent case of Hari Charan Dose v. Runjit Singh (1896) I.L.R., 25 Cal., 917, note, and there is apart from that case ample authority for it. Under the former Tenancy Act (Bengal Act VIII of 1869) an occupancy raiyat could be ejected from his holding in execution of a decree for arrears of rent due in respect of it. Sections 59 and 64 of the same Act made under-tenures which were transferable by the title-deeds or custom of the country saleable in execution of decrees for arrears of rent due in respect of them; but Section 64 expressly provided that when such an under-tenure was sold in execution of a decree obtained by a fractional shareholder for money due to him on account of his share of the rent, it should be sold not under the provisions of the Act, but under the ordinary procedure of the Court, and that the sale should have all the incidents attached to such a sale. Section 65 of the present Tenancy Act prohibits ejectment for arrears in the case of a tenant who is a permanent tenure-holder, a raiyat holding at fixed rates, or an occupancy raiyat, and enacts that 'his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.' Chapter XIV contains provisions for the sale of tenures and holdings in execution of such decrees, and undoubtedly, we think, relates only to sales of the kind authorized by Section 65., This section makes no distinction between transferable and non-transferable holdings and tenures, and the Act contains no special provisions for the sale of a tenure or holding in execution of a decree obtained by one of several joint landlords for money due to him in respect of his share of the rent of such tenure or holding. Section 188 enacts, however, that when there are several joint landlords they must all join in doing anything which under the Act a landlord is authorized or required to do. Reading this section, as we consider it must be read, in connection with Section 65 and Chapter XIV, it follows that the sale authorized by Section 65 is a sale of the tenure or holding at the instance of all the joint landlords in execution of decree obtained by them for the rent of it, and that the proceedings required to be taken under Chapter XIV must similarly be proceedings taken by all of them. The Act does not, we think, contemplate or provide for the sale of a tenure or holding at the instance of one only of several joint landlords, who has obtained a decree for the share of the rent due to him. Such a sale must, it seems, be under the provisions of the Civil Procedure Code, which by Section 143 are applicable to all suits under the Act except when declared inapplicable, and it would carry with it all the incidents attached to such a sale, and not the special incidents attaching to sale under the Act.
6. This view of the law seems also consistent with the general scope and policy of the Tenancy Act, which is to make all the joint landlords act together, and not to allow any one of them to act as if he was the sole landlord. The construction which the Subordinate Judge has put upon Section 65 would lead to much litigation and many difficulties.
7. The decision of the Full Bench of this Court in Beni Madhub Roy v. Jaod Ali Sircar (1890) I.L.R., 17 Cal., 390, has also an important bearing on this case. There a fractional co-sharer attached a tenure in execution of a decree which he had obtained for his share of the rent of it, and it was held that the attachment was not one contemplated by Section 170 of the Tenancy Act. Petheram, C.J., said, citing Section 188, 'where landlords are seeking to take the benefit of this Act, they must act in concert; and where one of several co-sharers in a zemindari thinks fit to pursue his remedies to recover his share of the rent, he must pursue them under the ordinary law of the country, and independently of the Bengal Tenancy Act.' It must follow that a sale in execution of such a decree is not a sale under the Act. We say nothing, it not being necessary, as to the possible effect of a decree obtained by one of several joint landlords in the presence of all of them for the entire rent of a holding or tenure.
8. The Subordinate Judge has cited as an authority in support of his view the case of Jawadul Huq v. Ram Das Saha (1896) I.L.R., 24 Cal., 143, and it has also been referred to here. That was not a Full Bench case, but it was decided by a Bench of five Judges. All that was decided was that if one of several co-proprietors of an estate purchased an occupancy-holding, that occupancy-right ceased to exist by the operation of Section 22, Sub-section 2 of the Bengal Tenancy Act, but that the holding was not annulled. That case has no application to the present one. It was never suggested in that case that the occupancy-holding, which had been sold in execution of a decree obtained by the purchaser for his share of the rent was not a transferable one.
9. We find then that this holding was not and could not have been sold under the provisions of the Tenancy Act in execution of the decree which the ijaradar had obtained against the tenant for his share of the rent. It was sold in the same way that any other property would be sold in the execution of a decree of a Civil Court, and as the judgment-debtor to whom it belonged had no transferable right, the purchaser acquired nothing by his purchase. It may be said of course that the ijaradar by causing the holding to be sold consented to the sale, but the consent of one of several joint landlords cannot bind the others or persons claiming under them, and it is not even found that in such a matter and in this case the consent of the ijaradar would bind his lessors, some of whom, so far as we can gather from the confused facts, appear to be supporting the defendants.
10. We cannot on the facts as found interfere with the. Subordinate Judge's decision on the question of limitation, but we must say that it is not easy to understand what really happened on the position of the parties with reference to the landlords, and also that he has dealt rather summarily with the evidence which was criticised at great length and disbelieved by the Munsif. The landlords are not necessary parties in the sense that the suit could not be tried in their absence, but if the defendants are in possession under a settlement secured from the landlords a decree against the defendants alone may not be of much use.
11. Although the plaintiff's title by purchase fails the Munsif says he claimed also under a settlement obtained from the landlords. This was considered at some length and found not to be proved. The Subordinate Judge has not gone into this part of the case. He found a title by purchase, and said that the question of recognition or non-recognition by the landlords was immaterial. Apparently, however, judging from what he says on the question of limitation, he considered that there had been some sort of recognition on the part of some of the landlords or their agents, but by whom, or what this amounted to, it is impossible to say. We think the plaintiff is entitled to have his decision on this part of the case. If before any settlement was made with the defendants his tenancy under the purchase was recognized by all the landlords, or if a settlement was made with him by the landlords on the strength of his purchase, he may be entitled to a decree against the defendants who, the Subordinate Judge says, turned him out before they became themselves tenants. We think it right, however, to say that the mere 'inducing some of the landlords' agents to receive rent' is not sufficient proof of recognition by the landlords, and that the question which we now direct to be tried must be decided on the whole evidence, the Court not being bound by the Subordinate Judge's decision or opinion on subordinate facts bearing on the question of limitation. We set aside the decree and remand the case for a decision on the question of title by recognition or settlement. As the appeal succeeds the appellant must get his costs in this Court.