1. The plaintiff-appellant brought the present suit to recover possession of certain lands which are described in Schedules A and B attached to the plaint. The lands in schedule A were claimed as lands included in the holding of defendants Nos. 3 and 4 and the lands in Schedule B were stated to be lands of which the defendants Nos. 3 and 4 had obtained possession by encroachment on the lands of the plaintiff, the landlord. Defendants Nos. 3 and 4 mortgaged their holding to defendant No. 1 and the defendant No. 1 brought a suit on the basis of his mortgage, obtained a decree and, having purchased the lands in execution thereof, took possession. The plaintiff's case was that the defendant No. 1 had acquired no title to the lands in suit because the holding of defendants Nos. 3 and 4 and the lands which they had obtained by encroachment were not transferable by custom. It appears that, after the defendant No. 1 had obtained possession, the plaintiff instituted a suit against the defendants Nos. 3 and 4 to recover possession of the lands in Schedule B which he said were his sir zerait lands and which, it was alleged, had been obtained by encroachment by the defendants Nos. 3 and 4. In that suit, he obtained a decree on the 11th June 1902 and possession was given to him on 17th July 1902. The defendant No. 1 put in a petition under Section 332 of the Code of Civil Procedure on the 4th August 1902 stating that he was in possession of the lands by right of purchase and could not be dispossessed. An order was passed in that application in favour of the defendant. Afterwards, the defendant No. 1 brought a suit against the plaintiff for a declaration of his title by purchase. That suit was dismissed on the 1st July 1903. After that the plaintiff brought a suit for the rents of the lands included in Schedule A against the defendants Nos. 3 and 4 and obtained a decree. In execution, the defaulting holding was advertized for sale but the defendant No. 1 appeared and put in an application asking for permission to deposit the decretal amount stating that he was the representative of the defendants Nos. 3 and 4. The application was made on the 3rd August 1903 and, though an objection was raised on behalf of the plaintiff, permission to deposit the money was given to the defendant No. 1 and, on the 14th August 1903, the plaintiff withdrew the money, his execution proceeding having been dismissed in full satisfaction of the decree. In 1904 the defendant No. 1 attempted to dispossess the plaintiff and proceedings were taken under Section 145, Criminal Procedure Code. On the 24th February 1904, an order was passed in favour of the defendant No. 1 and the plaintiff's allegation in the plaint was that he was dispossessed in consequence from March 1901. The present suit was instituted on the 7th November 1906. Meanwhile, in 1905, the plaintiff brought another suit to recover arrears of rent against the defendants Nos. 3 and 4 and obtained a decree. The holding was put up to sale, the defendant No. 1 appeared and asked for permission to deposit the decretal amount and though the plaintiff put in a petition objecting, his objections were overruled and the deposit was received. The plaintiff afterwards moved this Court to have the order allowing the defendant No. 1 to deposit the decretal amount set aside and a Rule was issued but it was afterwards discharged. The present suit was, therefore, brought by the plaintiff to recover possession of all the lands on the allegation that the defendant No. 1 had by his purchase at the sale in execution of his mortgage decree obtained no title.
2. Several pleas in bar to the suit were taken by the defendants. It was contended that the suit was bad for misjoinder of causes of action, that the suit was barred by limitation and that the plaintiff was estopped from bringing the suit. The learned Subordinate Judge has found in favour of the defendant on all these pleas and has dismissed the plaintiff's suit.
3. The plaintiff has appealed and, in support of the appeal, it has been argued before us that the decision of the Subordinate Judge on the three questions of misjoinder, limitation and estoppel is bad in law, and cannot be maintained.
4. Dealing with the question of misjoinder, the Subordinate Judge has held that, as the suit related to two sorts of lands, one sort being ryoti and the other sir zerait of the landlord, therefore, the suit is bad for joining in one suit two distinct causes of action. In our opinion, the view taken by the learned Subordinate Judge is incorrect. The plaintiff sued to recover possession of the lands as being lands, part of which was in the possession of the defendants Nos. 3 and 4 as their holding and the rest as obtained by them by encroachment on the khas lands of the landlord. Under the law, there is no possible objection to the joining of claims for these lands in one suit and the learned pleader who appears for the respondents admits that he is unable to support the finding of the lower Court on this point. Disagreeing, therefore, with the Subordinate Judge, we hold that the suit is not bad for misjoinder of causes of action.
5. Dealing with the question of limitation, the Subordinate Judge has cone to the conclusion that, as the suit is one which falls under the provisions of Section 25 of the Bengal Tenancy Act, that is to say, a suit to eject an occupancy ryot for breach of condition of his lease and as the breach must be considered to have taken place on the application made by the defendant No. 1 under Section 332, Civil Procedure Code, therefore, the suit is barred under Schedule III Article 1 of the Bengal Tenancy A ct. In our opinion, the view taken by the lower Court on this point is untenable. The suit was not one for the action of a tenant for breach of any term of the contract nor can the fact alleged by the plaintiff that the holding is non-transferable by custom be considered to be a term of the contract. The suit has been brought by the plaintiff to recover possession from the defendant No. 1 as a trespasser who is in possession of the lands in suit included in both Schedules A and B without any title. In these circumstances the provisions of the Bengal Tenancy Act have no application to the present case and the suit is, in our opinion, not barred by Articles 1 of Schedule III of the Bengal Tenancy Act which the learned Judge considers applicable. We may observe that the learned pleader for the respondent does not attempt to support the decision of the Subordinate Judge on this point.
6. Dealing lastly with the question of estoppel, the learned Subordinate Judge says that he acts upon two petitions, one filed by the defendant No. 1, dated the 3rd August 1903 and the other filed by the pleader of the late Maharaja dated the 14th August 1903. These are the petitions by one of which the decretal amount was deposited by the defendant No. 1 in satisfaction of the decree obtained by the plaintiff against the defendants Nos. 3 and 4 for arrears of rent in 1903 and the other by which it was withdrawn by the plaintiff. In dealing with this matter, and in fact, with the whole case, the learned Subordinate Judge refused to go into any evidence other than these petitions or to allow the parties to examine any witnesses in support of their respective allegations. The plaintiff, on the 23rd July 1908, put in two petitions objecting to the admission of the documentary evidence without proof and asking the Subordinate Judge to allow him to adduce evidence before the disposal of the suit. The learned Subordinate Judge, however, refused both the applications holding it to be sheer waste of time to do so. The Subordinate Judge has held that the plaintiff, by withdrawing the amount deposited by the defendant No. 1, admitted him as a tenant of the holding and that he is, in the present suit, estopped from denying his (defendant No. 1's) right as a tenant and from suing to eject him as a trespasser. The learned Subordinate Judge has, however, failed to notice that the suit was brought for the recovery of rent of the defendant's original holding which, on measurement, was found to consist of 85 bighas and that the mortgage to the defendant No. 1 of the lands purchased in execution of that mortgage covered only 74 bighas which represented the original holding of the defendants Nos. 3 and 4 but which, on measurement, was found to consist of 85 bighas. The suit did not relate to the lands included in Schedule B, the area of which is stated to be 107 bighas so that, even if the decision of the Subordinate Judge on this point could be accepted, it would not go further than to cover the lands included in Schedule A. We have been referred to the petitions of 1903 in which the defendant No. 1 prayed for permission to deposit the decretal amount in satisfaction of the plaintiff's decree for rent and the entries in the order sheet and from them we are satisfied that, at that time, the plaintiff through his pleader protested against the defendant No. 1 being allowed to deposit the decretal amount, alleging that the defendant had no title in the holding. It was only, after the order of the Court had been passed granting the defendant No. 1 permission to make the deposit and after the Court had received that deposit and had struck off the execution case as fully satisfied, that the plaintiff applied to withdraw the amount. The learned Subordinate Judge has held that, by withdrawing the amount without appealing to the High Court and without bringing a regular suit, the plaintiff has admitted the defendant. No. 1 as his tenant and so estopped himself from suing in the present suit to eject him as a trespasser; and in support of this contention, he has relied on the decisions of this Court in two cases. The first is the case of Mirtunjoy Sircar v. Gopal Chander Sircar 10 W.R. 466. The facts of that case, however, are entirely different from the facts of the present case, for, in that case, the Zemindar had accepted rent from the defendant as the holder of the tenure and it was held that he could not afterwards draw back and ignore the position of such person as tenant even if the latter was not registered as a tenant in his office. The other case relied on is that of Thomas Barclay v. Syed Hussain Ali Khan 6 C.L.J. 601. That case, in our opinion, so far from supporting the opinion of the Subordinate Judge, in fact, supports the opposite view. In that case, it was held that there had been a neglect on the part of the plaintiff landlord to speak and object to the deposit at the time when the deposit was made and that that omission had induced the opposite party to change their position and that, in consequence, they had been prejudiced by the plaintiff's silence. In the present case, the plaintiff through his pleader protested against the defendant No. 1, being allowed to make the deposit, and it was in spite of that protest that the defendant No. 1 insisted on depositing the money. We are of opinion that the two cases relied on do not, in any way, support the conclusion at which the learned Subordinate Judge has arrived that, in the present case, the plaintiff was estopped from bringing the suit by reason of the fact that he withdrew the money deposited by the defendant No. 1 in 1903. In 1905, the plaintiff appears to have raised more serious objections than in 1903, and it was only after he had failed in the Court of first instance and had failed in an application to this Court and his execution proceedings had been closed that he, as a last resort, withdrew the money deposited by the defendant No. 1. In our opinion, it is impossible to hold that the conduct of the plaintiff in withdrawing either of these amounts can be regarded as barring him in the present suit. We may observe that, in the latest version of the Bengal Tenancy Act by the Government of East Bengal and Assam, it has been expressly provided that the withdrawal of an amount of rent deposited under Section 310A of the Code of Civil Procedure shall not operate as an admission of the transferability of the tenure or holding sold in execution of the decree. In our opinion, the Subordinate Judge was wrong in the view which he took that the plaintiff was estopped from bringing the present suit to eject the defendants as trespassers. The result, therefore, is that the findings and decree of the lower Court on these three preliminary points are set aside and the case is sent back to that Court for re-hearing on the merits. The plaintiff-appellant is entitled to his costs in the appeal to this Court but the costs in the lower Court will abide the final result of the suit.