1. The facts of this case are that the plaintiff obtained a decree against the defendants who were his tenants and in execution of that decree the defendants' holding was purchased by the plaintiff on 21st March 1918. The plaintiff's case is that he obtained possession of it through Court on 23rd December 1918 but did not get actual possession as the defendants refused to vacate it. The present suit by the plaintiff is for recovery of possession. The plaintiff's suit succeeded in the trial Court but the learned Subordinate Judge dismissed it and hence this appeal by the plaintiff.
2. The learned Subordinate Judge has disposed of this case on two principal grounds. The first is that there had been a recognition of the defendants by the plaintiff since his purchase in 1918. On that point his finding is based on the facts that some of the cosharers of the plaintiff brought suits for rent against the defendants after 1918 to which suits the plaintiff was made a pro forma defendant. In the Collectorate the plaintiff submitted some hastabuds in which the defendants were shown as tenants in occupation of the holding.
3. With regard to the first ground the mere fact that the plaintiff was a pro forma defendant in a suit for rent for a period subsequent to 1918 by other cosharers does not constitute any recognition by the plaintiff. The only way to prove recognition by the plaintiff of the defendants after the sale of the holdings was by proving that the plaintiff had accepted rent from the defendants. On that point the learned Subordinate Judge has agreed with the trial Court in holding that the evidence adduced by the defendants to prove that the plaintiff accepted rent from the defendants is unsatisfactory. As to the second ground on which the learned Subordinate Judge relied, we think that the view taken by the trial Court is more correct, namely, that the hastabuds were filed by the plaintiff in the Collectorate for the purpose of showing the present assets of the tenure and as the defendants were in possession of the holding paying a certain amount of rent it was necessary that it should be shown in the hastabuds. This does not constitute a recognition by the plaintiff of the defendants' tenancy nor does it estop the plaintiff from showing that the defendants are riot at any rate his tenants. The findings based on this ground cannot stand.
4. The other ground on which the learned Subordinate Judge has held that the plaintiff cannot recover khas possession of the land though he got his title established in a previous suit is that the plaintiff entered into an engagement with the Government that he would respect the entries in the Record-of-Rights. This ground is not applicable to the facts of the present case. So far as the question of law is concerned, it is well settled that a person holding settlement from the Government of Government khas mahal or temporarily settled estate is bound under the terms of the settlement to recognize the tenants or tenure-holders mentioned in the settlement paper. Tapanidhi Puri v. Pitambar Mahapaty (1907) 5 C.L.J. 67, Chandramoni Mohanti v. Manmatha Nath (1910) 11 C.L.J. 68, Jarip Sardar v. Jogendra Nath (1920) 24 C.W.N. 53 and Maharaja Kunwar Manmatha Nath Roy v. Amir Khan (1918) 3 Pat.L.J. 394. But there are to the contrary other cases of which the case of Zamir Mandal v. Gopi Sundari (1905) 32 Cal. 463n., is the type in which it has been held that in spite of the terms in the agreement between the landlord and the Government the landlord can enhance the rent of the tenant if agreed to by the tenant. The ratio of these, cases is that the settlement holder can enforce a claim not based on the settlement but upon, contract and secondly on the principle that a person not a party to the contract cannot seek to enforce its terms. The question was considered in in Jahandir Baksh Mulliak v. Ram Lal Hazra (1910) 37 Cal. 449 and we agree with the view expressed by the learned Judges in that case. In the present case the plaintiff is not trying to enforce any right which he has obtained under the settlement from the Government but he is attempting to enforce a right he has acquired under a decree of the Court. In other words the suit is brought by the plaintiff qua purchaser and not qua settlement holder from the Government. There is nothing in the law which prevents a person enforcing a right he has obtained otherwise than under settlement from the Government. This point has been in our opinion wrongly decided by the learned Subordinate Judge.
5. The learned Subordinate Judge has about the end of his judgment remarked that the plaintiff's purchase was not a purchase of the existing tenancy but of one which existed before. If the learned Subordinate Judge meant by this expression, which is not very intelligible, that the previous tenancy came to an end by the purchase of the plaintiff in March 1918 and a new tenancy was created since then, we have expressed our opinion that the finding on this point by the Subordinate Judge is without support.
6. There is another observation made by the learned Subordinate Judge which needs some reference. He says that there is no evidence of delivery of possession adduced by the plaintiff. We find, from an examination of the record that the record of the execution case in which the plaintiff after purchasing the defendants' holding obtained delivery of possession was before the trial Court which is the same' Court that executed the decree. The learned Munsiff has referred to the execution case in his judgment. The learned Subordinate Judge thinks that as the order sheet of the execution case was not formally put in it could not be referred to. This is not the right way of doing justice and as no objection was taken by the defendants to the use of the record of the execution case, before the same Court, we do not think that this omission should stand in the way of the appellant.
7. The result is that this appeal is allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored with costs both here and in the Court of appeal below.
8. I agree with the order passed by my learned brother but would base it simply on the ground that, in agreeing under the settlement with Government to respect the rights of the tenants as recorded in the Record-of-Rights, the appellant, in the circumstances of the case, should not be held to have undertaken to forego his existing rights under the decree. He obviously had no such intention nor was it the intention of Government to make the settlement subject to any such relinquishment of his rights.