1. The question which arises is this appeal is whether a se-patnidar who has not been ejected is a proceeding under Section 167 of the Bengal Tenancy Act, is entitled to continue collecting rent from the tenants notwithstanding that the dar-patni under which he holds has been extinguished under that section.
2. A good deal of argument has been addressed to us as to the effect of a previous litigation and the dismissal of the purchaser's suit against the se-patnidar in a case in which he obtained a decree for possession against the dar-patnidar. It is stated that the learned Counsel for the purchaser withdraw the suit as against the se-patnidar and this appears from the judgment of the High Court. It is clear that the suit Could not have been dismissed for misjoinder of parties, and it is also clear, in our opinion, that the se-patnidars were not necessary parties, inasmuch as the extinction of the dar-patni necessarily carries with it the extinction of the se-patni which is certainly not a protected tenure under the definition in Section 160 of the Bengal Tenancy Act.
3. The learned Vakil, who has argued the case on behalf of the respondents, his asked us to hold that the se-patnidars being in possession must be in possession either as tenants or trespassers, that they any still be the purchaser's tenants, and whether they can be turned out depends upon the nature of their tenancy. It is not known what powers the dar-patnidar acquired under his lease to create sub-tenures. But we find that what the late se-patnidars are now seeking to do is to force themselves as dar-patnidars on the purchaser under the terms of a contract to which he was not privy and knows nothing about. No plea was raised in the lower Courts, either in the original case or in appeal, that the se-patnidars have any specially protested under-tenure, and it is clear that ordinarily a se-patni cannot survive the extinction of the dar-patni.
4. We are, therefore, of opinion that the se-patnidars have no title whatever to collect rent from the tenants and that on the extinction of the dar-patni, the tenants became liable to pay their rent directly to the patnidar purchaser.
5. Without, therefore, giving any opinion as to the nature of the possession or alleged possession of the se-patnidars, we must hold that their present suit for rent is liable to dismissal.
6. The judgment and decree of the lower Appellate Court is, therefore, reversed and the plaintiff's suit is dismissed with costs in all the Courts.