1. This appeal arises under the flowing circumstances:-- Lakhan was the holder of a separated 8-annas share of a Mokararitenure under Kailash Misra, the rent-free proprietor. Lakhan had two sons Goday and Becharam be interest of the latter being indented by his four sons. Kailash sued Goday and his nephew for arrears of rent of the 8 annas Mokarari in question; and a compromise decree was passed whereby it was agreed, that Goday's moiety interest should be separated off from the moiety of Becharam's sons each being deemed an independent tenure. That decree is dated the 23rd March 1889. In execution of the decree the 4-annas share belonging to Becharam's sons was put up for sale and was purchased on the 21st June 1890 by Surjya Naryan Gossain. Subsequently, Kailash sued Suriya Narain for arrears of rent, and in execution his 4-annas interest was purchased by the plaintiff on the 22nd January 1894.
2. The plaintiff brought this suit on the allegation that he had been put in possession by the Court in May 1894 and dispossessed by the defendants in the subsequent month of August.
3. The principal defendants, who are the appellants before us, had in April 1879 obtained a mortgage from three of Becharam's sons of their interest in this tenure and covered a mortgage-decree on the 4th September 1890 against two of those sons (neither Surjya Narain nor the plaintiff being made a party to the suit) and in execution thereof, on the 23rd May 1894 themselves purchased the interest of those two sons representing one-fourth of the original 8 annas Mokarari tenure. The defendants pleaded that the plaintiff was not entitled to deprive them of the interest thus acquired because he had not annulled the in cumbrance in the manner and within the time required by law. They also contended that the rendered in execution of which the plaintiff purchase d the property was a decree in respect of only a share of the tenure, and had, therefore, only the effect of a money- decree, the sale in execution of which would pass no more than the right, title and interest of the judgment-debtor. Both the lower Courts have held that these pleas are invalid, and have given the plaintiff a decree. The same contentions are raised in the appeal before us.
4. As regards the second of these grounds, it is urged that the Solenama decree, in so far as it went beyond the scope of a rent-decree and recited a separation of shares between the defendants, was invalid. It must, however, be conceded that the landlord and the tenure holders were at perfect liberty to divide the tenure by mutual arrangement. They did so in fact and evidence d it not only by the Solenamah on which the decree was based, but by subsequent conduct, first in the sale at which Surjya bought and afterwards at the sale in which the plaintiff bought. The agreement was a binding one between the parties, and its validity was not impaired by its being incorporated in the decree. The separated 4 annas Mokarari was duly and effectively recognized by both landlord and tenants, and so the plaintiff's purchase must be regarded as that of an entire tenure.
5. The next question which arises is, whether the plaintiff was entitled to sue for possession though he had not annulled the incumbrance set up by the defendants. This leads us to a consideration of some of the provisions contained in Chapter XIV of the Bengal Tenancy Act, Section 159 enacts that where 'a tenure is sold in execution of a decree for arrears due in respect thereof, the purchaser shall take with power to annul the interest defined as incumbrances.' Section 161 indicates that a mortgage comes within the definition of an incumbrance. IN the present instance it does not appear that the tenure was first put up for sale under Section 164 and then under Section 165. It has been found by both the lower Courts that the mortgage was not notified to the landlord so as to make it a 'registered and notified incumbrance,' therefore, there was apparently no necessity of first resorting to the procedure indicated in Section 164. However this may be, the purchaser under either of the two Sections 164 and 165 has power to annul an encumbrance and can only do so in the manner prescribed by Section 187, and not otherwise. He is required within one year from the date of the sale, or the date on which he first has notice of the incumbrance, whichever is later, to present to the Collector an application in writing, requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled.' This motion had not been taken either by the plaintiff or by Surjya the previous tenure-holder but it will be remembered that in the suit brought by the defendant against some of his mortgagors neither Surjya Narain the plaintiff was made a defendant and the lower Courts have found that they had no notice of the incumbrance, and that the plaintiff was first made aware of it when it was pleaded in the written statement and they have further found that plaintiff was put in possession under his purchase and subsequently dispossessed by the defendants. ' That being so, we think that the plaintiff had a good cause of action and was entitled to recover the property from the defendants subject, however, to the condition that the incumbrance would stand good if not annulled within one year of the plaintiff becoming aware of its existence. The plaintiff's right of action which was good and valid when the suit was brought could not be taken away by what was brought to his notice for the first time in the defendant's written statement.
6. We are not now concerned to enquire whether the plaintiff has rot taken any action to annul incumbrance. We have only to see whether he had a right to be put in possession of the tenure at the time he brought his suit, and as we have found that he was so entitled we affirm the decree of the lower Court, with this reservation however, that the incumbrance would stand good if not annulled within one year of the plaintiff's knowledge thereof, and we dismiss this appeal but without costs, as the respondent does not appear.