1. This appeal arises out of a suit for rent. The plaintiff had acquired the landlord's right by purchase at a sale in execution of a mortgage-decree. He made the successors of the previous holder of the landlord's right, parties to the suit. The main question which was determined by the lower Courts was the question whether the plaintiff had obtained possession of the landlord's right or not. The suit was contested upon this ground both by the tenant and by the successors of the previous holder of the landlord's right. The first Court held that the plaintiff had failed to prove that ho obtained possession. The Court of first appeal set aside this decision, held that the plaintiff had obtained possession and decreed the suit. The successors of the previous owner of the landlord's right and the tenant both appeal to this Court.
2. An objection has been made by the respondent that no appeal lies.
3. The plaintiff's title was, however, assailed by the successors of the previous owner and there were conflicting claims which were decided by the Court below. An appeal, therefore, lies.
4. The first ground taken in appeal is that it is not open to the Civil Court to go into the question of the plaintiff's title inasmuch as that has been determined under Section 40 of the Bengal Tenancy Act.
5. It appears that the tenant had applied under that section for the commutation of his rent. A copy of the decision has been filed in this case and from that decision it appears that both the plaintiff and the defendants 2nd party, the successors of the previous owner, were parties to that decision. But it does not appear that any question between the plaintiff and the previous owner was decided. The case of Lala Saligram Singh v. Mohunt Ramgir 3 C.W.N. 311 has been relied on. But in that case the decision under Section 40 was directly attacked and it was held that it is not open to the Civil Court to enter into a question which involves the validity of a decision under Section 40 of the Bengal Tenancy Act.
6. In the present case there was no decision of the question in the case under Section 40, nor is the validity of the proceeding under Section 40 involved in the present case. We are of opinion that the judgment in the case under Section 40 does not operate as a bar in the present suit.
7. It was then contended that the plaintiff is not entitled to succeed inasmuch as his name had not been recorded in the land register. There is nothing, however, to show that the name was not so recorded and no objection on behalf of the tenant was made that the plaintiff was not recorded in the land register.
8. Then it is contended that the Court of appeal below was not justified in coming to the finding that it did in the absence of evidence, but we find that there was evidence to support the finding, namely to the effect that possession had been delivered to the plaintiff by the Court after his purchase at the execution sale, and that in the case under Section 40, the tenant had made the plaintiff a party.
9. It is further contended that inasmuch as the tenant had sold his jote to one Tapashia Tewari, a third party, he had thereby got rid of the liability to pay rent. The defendant, however, did not allege that there was any custom entitling him to transfer his tenancy nor was there any evidence that he had put an end to his liability to pay rent to the landlord.
10. It has finally been somewhat faintly contended that in a rent suit, the Court should not have gone into the question of title. But in order to determine the claim for rent, it was necessary to go into the question in this case. Moreover, after all it was a question of possession and not title.
11. The appeal is dismissed with costs.