Gopendranath Das, J.
1. This appeal is on behalf of the heirs of defendant 1. It related to two plots bearing c.s. dags Nos. 1192 and 1196 of Mouza Ramkrishnapur. The plaintiffs brought this suit for declaration of title and for recovery of possession with a prayer for mesne profits. The facts are that under the Said pur Trust Estate, a patni was created in the year 1821 in favour of Gopi Roy and Robi Roy. In course of time this patni devolved on plaintiffs 1 and 2. Within the patni there was a ganti created by a lease of the year 1879 which was held by one Amritalal Joddar and his co-sharers at a rent of Rs. 337-8-0. This ganti was recorded in C.S. Khntian No. 95. The ganti was purchased in course of time by plaintiffs 1 and 2. Within the ganti there was a dar-ganti bearing a rental of Rs. 543-12-0 which was held by Ramkrishna Goldar and others. This dar-ganti was recorded in Khatian No. 176. In the year 1934, plaintiff 1 and pro forma defendants 2 to 4, who were predecessors-in-interest of plaintiff 2, instituted a suit for enhancement of rent against the dar-gantidars. This suit was numbered as rent Suit No. 2 of 1934 and was decreed, the decree being Ex. B. Against the decree of the trial Court, an appeal was taken by tenaxits defendants Ramkrishna Goldar and others to this Hon'ble Court resulting in First Appeal No. 181 of 1934. Ultimately this appeal was disposed of on the basis of a petition of compromise, which is marked Ex. 7a and the decree that was passed on compromise is Ex. 7. I shall have to refer hereafter to the terms of this decree. This decree was executed in a rent execution case No. 8 of 1936. The dar-ganti was put up to sale and was purchased by plaintiff 1 and pro forma defendants 2 to 4 i.e. predecessors of plaintiff 2 on 20th April 1936. The sale certificate is Ex. 5. Possession was taken through Court on 23rd June 1930 Within the dar-ganti there was a tenancy (the incidents whereof are now in dispute) bearing a rental of Rs. 125 later on increased to Rs. 406-10-0 and was held by defendant 1 the predecessor-in-in-tarest of the present appellants. The notice under Section 167, Ben. Ten. Act, was served by the plaintiff on defendant 1 on 6th December 1936. The plaintiff being resisted in taking possession by defendant 1 started the present suit with the prayers stated already.
2. The material defence of defendant 1 is that the decree Ex. 7, had not the effect of a money decree and therefore, the plaintiffs by their own purchase did not acquire the rights conferred on purchasers under Section 159, Ben. Ten. Act. A further defence was that the interest of defendant 1 was that of an occupancy raiyat and was a protected interest under the Bengal Tenancy Act.
3. The Courts below have decreed the plaintiffs' suit. Against the concurrent, judgments of the two Courts the heirs of defendant 1 have preferred this appeal.
4. Mr. Ghose appearing on behalf of the appellants has argued in the first instance that the Court of appeal below was in error in holding that the interest of defendant 1 was that of a tenure holder He relies on the decision of this Court in Rashbehari Mondal v. Hemanta Kumar : AIR1928Cal52 which was a decision inter paries and submits that the status of defendant 1 was there held to be that of an under-raiyat of the second decree and as such the decree for rent obtained in Rent Suit No. 2 of 1934 and First Appeal No. 181 of 1934 had not the effect of a rent decree within the meaning of the Bengal Tenancy Act and by the sale the plaintiffs did not acquire the right to annul the interest of defendant 1.
5. In the second place he has argued that in view of the terms of the compromise decree, Ex. 7, the sale in execution of that decree had not the effect of a rent sale.
6. I shall deal with these points now. As regards the first point raised, the Court of appeal below has come to a finding that the interest of defendant 1, is that of an under-tenure-holder. In so holding, it has relied on the entries in the record of rights and also on the presumption which arose under Section 5(5), Bengal Tenancy Act, the area of the tenure being much in excess of one hundred bighas, This is a finding, which, in my opinion, cannot be assailed, unless Mr. Ghose is right in his contention that the decision in Rashbehari Mondal v. Hemanta Kumar : AIR1928Cal52 concludes the matter. A reference, however, to that decision would show that B.B. Ghose J., who delivered the judgment left the question whether the lease of 1879 was a tenure or a raiyati holding, undecided; Rashbehari Mondal v. Hemanta Kumar : AIR1928Cal52 . The first contention therefore fails and it must be held that the interest of defendant 1 was that of a permanent under-tenure holder. This finding disposes two subsidiary conditions which were raised, namely, whether by reason of the plaintiffs' purchase of the ganti interest, there was an appreciation of the interest of defendant 1 as also the contention as to whether after the amendment of the Bengal Tenancy Act in the year 1929, Section 65, Bengal Tenancy Act, is applicable to decrees for rent obtained against under-raiyats with rights of occupancy.
7. The second contention of Mr. Ghose in my opinion, must be overruled on the following grounds: In order that a sale in execution of a decree for arrears of rent may have the effect given to a rent sale under Section 159, Bengal Tenancy Act, it must be established that the decree for arrears of rent had the effect of a rent decree within the meaning of Section 65, Bengal Tenancy Act, and, in the second place, the procedure in execution should have conformed to the provisions of chap. 14, Bengal Tenancy Act. This view is supported by a decision of this Court in Chandra Mohini Debi v. Kenatam Chetti 1 A.I.R 1914 Cal. 189 and in Sital Chandra Majhi v. Parbati Charan 9 A.I.R. 1922 Cal. 32 at p. 8. A decree for rent to have the effect of a rent decree under Section 63, Bengal Tenancy Act, must satisfy the following conditions: In the first place, the suit must be a suit for recovery of rent due from a permanent tenure-holder or a raiyat at fixed rates or an occupancy raiyat and possibly after the amendment, from an under-raiyat with a right of occupancy. In the second place, the claim in the suit must be a claim for arrears of rent only. In the third place, the suit must be framed in conformity with the provisions of Section 148A, Bengal Tenancy Act. In the fourth place, the defendant in the suit should be either a recorded tenant or a tenant constructively made so by operation of Section 146A, Bengal Tenancy Act, In the fifth place, the relationship of landlord and tenant must subsist between the parties uptil the date of sale: Krishna Pada v. Manada Sundar Ghose : AIR1932Cal321 . In order that this decree may result in a rent sale with the consequences provided for in Section 159, Bengal Tenancy Act, a further condition has got to be fulfilled, as was pointed out by this Court in Soshi Bhusan Guha v. Gogan Chunder ('95) 22 Cal. 364, viz., the procedure in execution must conform to chap. 14, Bengal Tenancy Act, namely, that the charge created by Section 65, Bengal Tenancy Act, should be enforced by a sale of the tenure or holding free from incumbrances and if, in any case, the decree for rent either has not been or cannot be enforced by sale of the tenure, the charge created by Section 65 cannot be enforced in any other way.
8. Let us now apply this test to the decree, Ex. 7 taken along with the compromise petition Ex. 7A. It may be pointed out that the decree which was then under appeal to this Court was undoubtedly a decree for arrears of rent satisfying the conditions which: I have indicated above. In this Court some of the parties came to terms. The terms of compromise provided expressly that the appeal should be dismissed and the decree for rent which was passed would have the effect of rent decree. One Abesh Kumari who held three tenancies was transposed to the category of appellants and it was stated in Clause 12F of the compromise petition that the interest of Abesh Kumari in these three tenancies would not be regarded as incumbrances and it was further provided that, in the sale proclamation which was to be issued afresh a note will be made that interest of Abesh Kumari in the three tenancies would not be regarded as incumbrances, whether the purchaser was the decree-holder or a stranger. Mr. Ghose contends that the effect of this is to render the execution sale a money sale, because under as. 164 and 165. Bengal Tenancy Act, the proclamation should state that the sale is to be free from all incumbrances including registered and notified incumbrances under the conditions set forth in the sections. To my opinion the statement in the compromise petition does not affect the rights which may be acquired under Chap. 14. The execution was levied against the tenure in arrears and the procedure that was followed was intended to put up to sale the entire tenure in arrears. I think, that the statement of the decree-holder that certain interests are not incumbrances does not render the sale other than rent sale. Mr. Ghose relied on an unreported decision of this Court which is reported in Jotindra Nath Roy v. Mozafar Ali Khan ('12) 16 C.W.N. 13 (N.P.) That case, in my opinion does not touch the present case at all. The it was pointed out that a decree for rent cannot limit the rights of the decree-holders to proceed only against the tenancy in arrears and absolve the defaulting tenants from personal liability which he undoubtedly has on account of the non-payment of the rent. The two contentions raised on behalf of the appellants, therefore, fail and this appeal must be dismissed but in the circumstances of the case I make no order is to costs.
9. Leave to appeal under Clause 15 of the Letters Patent prayed for is granted.