P.N. Mookerjee, J.
1. This appeal is by defendant No. 1 and it arises out of a suit for declaration of title, confirmation of possession and injunction.
2. Shortly stated, the relevant facts lie within a short compass. The disputed property originally belonged to two brothers, Kumarish Dutt and Kaladhauta Dutta. The latter died, leaving behind his widow Kanaklata as his only heir. Thereafter, Kanaklata sold her interest on September 7, 1930 ostensibly to one Laksminarayan. The landlord filed Rent Suit No. 1105of 1942 against Kumarish, Kanaklata and Mohini Chhutarini who, according to the plaintiff, was the real purchaser under the above sale from Kanaklata and Laksminarayan the ostensible purchaser was her benamdar. In the said suit, the landlord got a decree and in execution of that decree, Kumarish auction-purchased the holding in the benami of his sister's son Haradhan. According to the plaintiff, Kumarish, as the real auction-purchaser, was in possession since the date of the said auction sale until he sold the suit land to Dhananjoy and Kuranibala on April 3, 1948. From these two persons, the plaintiff purchased the suit property on Kartick 24, 1359 B.S., and he claims to have been in possession of the suit land since then. Thereafter, defendant No. 1 succeeded in a Section 9 proceeding which necessitated the present suit by the plaintiff.
3. The courts below have concurrently decreed the plaintiff's suit. Before the courts below, various defences were taken but, upon the findings, the position stands as follows :
That Kumarish was the auction purchaser in the rent sale, mentioned hereinbefore, and Haradhan was his benamdar. That this is so is abundantly clear from the nadabi, executed by Haradhan in favour of Kumarish, making a declaration to that effect, on January 19, 1945.
4. The defence case that the said nadabi was not a genuine document or a genuine transaction or declaration has been negatived by both the courts below and I am bound to accept the said concurrent finding. The courts below have also concurrently held that Laksminarayan was a benamdar in regard to the purchase, made from Kanaklata, the real purchaser being Mohini, who was one of the persons, impleaded in the landlord's rent suit aforesaid. This finding also has been concurrently made by the two courts below and, being based on evidence, it is binding upon me in second appeal.
5. The net position then is that, in the rent suit, all persons, having interest in the disputed holding, were made parties with the result that the decree, obtained therein, was a rent decree and Kumarish's purchase aforesaid must be held to be a rent sale purchase. This negatives one of the submissions, made by Mr. Mukherjee, appearing for the appellant before me, that the said sale would have the effect of a money sale. Mr. Mukherjee in support of this put forward an additional argument that, whatever might have been the effect of this sale or the character or nature of this sale, if the purchase was made by a third party, the purchaser being one of the co-sharers judgment-debtors, It would have the effect of money sale. I have not found anything either in statute or on principle to accept this submission. I, accordingly, reject the same.
6. The only other point which was urged in support of this appeal was that the purchase of Kumarish offended against Section 173 of the Bengal Tenancy Act. That is undoubtedly so but the Section itself provides for the consequences and gives a right to the decree-holder or to other persons interested to have the sale set aside on that ground. No such step wasactually taken in this case and therefore this Section cannot go against the plaintiff.
7. Mr. Mukherjee lastly urged that in any event Kumarish having been one of the judgment-debtors and a defaulting co-sharer, the purchase by him, whatever be its other consequences, would enure to the benefit of all the co-sharers or in other words to the benefit of defendant No. 1's vendor as well. This submission of Mr. Mukherjee also cannot be accepted. It is not the law that the mere fact that a co-sharer, a defaulting co-sharer, makes the purchase at the sale for arrears of rent or revenue would have the consequence of making the purchase ensure to the benefit of all the co-sharers. That is not the benefit of all the co-sharers. That is not the effect of the decision of the Judicial Committee in Deonandan Prashad v. Janki' Singh, 44 Ind App 30: (AIR 1916 PC 227). The matter, indeed, has been sufficiently clarified by the later decision of this Court in Kurshed AH v. Dinanath Surma, AIR 1919 Cal 431. The same or a similar view has been taken in one of the recent decisions of the Orissa High Court in Narahari v. Muralidhar Bout, : AIR1957Ori151 , which tends to support even a more extreme or extended proposition in that behalf, not relevant for my present purpose. At any rate, from the above authorities, this much is clear that this point, which is now sought to be taken by Mr. Mukherjee for the first time in this Court, is not a pure question of law but depends on facts as well, and the point was not taken in either of the two courts below. In the circumstances, I would not have been inclined to entertain the same, even apart from what I have already stated hereinbefore. This submission of Mr. Mukherjee also, would, accordingly, fail.
8. In the result, this appeal will fail and it will be dismissed.
9. There will, however, be no order for costs in this Court, as there is no appearance here on behalf of the respondents.