1. This is an appeal by the plaintiffs from the judgment of the learned Subordinate Judge of Rajshahye, dated the 16th April 1913.
2. The facts so far as they are relevant to the present appeal are as follows:---One Khormannessa on the 27th March 1897 created a permanent tenure in favour of persons who have been called the Kundus in the present case in certain property. The property consisted of shares in certain toujis as well as the whole of the mokarari interest of portions of the same lands.
3. On the 17th of July 1902 the plaintiffs purchased the interest of Khormannessa in all the lands leased out to the Kundus. The plaintiffs on the 6th of June 1904 brought a suit for rent against the Kundus and obtained a decree on the 21st of November 1904. The tenure was put up for sale in execution and purchased by the plaintiffs on the 21st of May 1906. In the meantime on the 18th of January 1904, the defendants purchased at a sale in execution of a money-decree the interest of the Kundus in a portion of the property. This sale was confirmed on the 21st of May 1904 but the Court, before confirming the sale, did not require the deposit of the landlord's fee as required by Section 1(sic)8 of the Bengal Tenancy Act. The deposit was, however, made on the 12th of July 1904. The plaintiffs had instituted their suit against the Kundus on the 6th of June 1904, and they did not, even after they became aware of the defendants' purchase, apply to add the defendants as defendants to the suit they had brought against the Kundus for rent. It has been argued on this appeal that as the plaintiffs were not aware at the date of the institution of their suit against the Kundus of the interest acquired by the present defendants, they were entitled to neglect the interest acquired by the present defendants when they came to hear of it after the institution of their suit. That argument does not appear to be well founded. Having regard to the terms of the Validation Act (Act 1 of 1903 B. C.) it is clear that the defendants acquired an interest in the property before the plaintiffs instituted their suit for rent against the Kundus. Many cases have been cited on both sides to show that in such a case the plaintiff in a suit can or cannot neglect an, interest, he first comes to hear of after the institution of his suit. These cases seem to me to have little, if any, bearing on the point in debate. The real question is whether a plaintiff desiring to affect or override the interest of a person acquired prior to the institution must, if he becomes aware of such interest subsequent to the institution of-his suit, join such persons as a party to his suit before he can affect or override such interest. On general legal principles I think he is so bound and if he fails to do so, the interest acquired prior to suit will not be affected. The defendants having acquired an interest in the property it cannot be that such interest known to the plaintiffs before decree is liable to be sold in a suit brought against another person and to be determined without the defendants having an opportunity of paying the rent and saving their property. I agree, therefore, with the Conclusion of the learned Subordinate Judge in this respect.
4. One other matter was raised on the hearing of this appeal, viz., that the learned Judge had dismissed the suit as regards the land mentioned in schedule una to the plaint. The defendants, save as hereinafter mentioned, do not claim that the 'land mentioned in schedule una was included in their sale-certificate, but say that the lands in schedule gha to the plaint are also included in schedule una.
5. The parties are agreed that the decree passed by the learned Judge should be amended by awarding possession to the defendants of the land mentioned, in schedule una to the plaint, but that this shall not prejudice or affect the right of the defendants declared by the judgment in the lands mentioned in schedule gha to the plaint. Subject to this amendment the judgment appealed from must be affirmed and the appeal dismissed with costs, one hundred rupees.
6. The parties have to day put in the terms on which the decree in this case should be drawn up. Let the decree be prepared in those terms.