B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them to recover khas pos. session of the lands in suit on establishment of their title to the same as tenants under defendants 1 to 3. The facts lie within a small compass. The disputed lands which measure 5 bighas 3 cottas admittedly belong to defendants 1 to 3 as being within their putni and darputni tenures and they were originally held by them in khas. In April 1925, they granted a mokarari lease of 6 bighas and 3 cottas of land including the lands in suit to defendant 6, reserving a yearly rental of Rs. 13-7-0. Defendant 6 sold 1 bigha out of these lands to one Rustum and by three separate kobalas executed between 1925 to 1929, sold the balance of 5 bighas 3 cottas which is the subject-matter of the present dispute to the plaintiffs. Rustum had a separate jama created in respect of his 1 bigha plot in the sherista of the landlord for which an annual rent of Rs. 2 annas odd was paid by him separately. The plaintiffs did pay the landlords fees at the time of their purchase and their names were recorded in the cadastral survey records as tenants under defendants 1 to 3 in respect of the lands in suit. Defendants 1 to 3 however ignoring the rights of the plaintiffs brought a suit for rent against defendant 6 claiming rent for the suit lands and having obtained a decree in that suit put up the land to sale and purchased that themselves in December 1932. They took symbolical possession in 1934 and took away certain paddy crops grown by the plaintiffs. The plaintiffs thereupon instituted a suit for an injunction restraining these defendants from taking possession of the properties and in that suit the defendants gave out that they were possessing the lands through their bargadars, defendants 4 and 5. That suit was dismissed on the ground that as the plaintiffs were already dispossessed no suit for injunction would lie. Thereupon the present suit was instituted in June 1935 and the plaintiffs claim khas possession of the lands in suit as well as mesne profits and damages. The material defence was that defendant 6 was an ordinary ticca tenant and did not acquire either mokarari or even occupancy right in the lands in suit under defendants 1 to 3 and that the plaintiffs were in the position of unrecognized transferees and were hence bound by the decree which defendants 1 to 3 obtained against defendant 6. Defendant 3 put forward an additional plea that he not being a party to the potta granted to defendant 6, defendant 6 or the present plaintiffs were not tenants under him.
2. The trial Court held on evidence that all the defendants including defendant 3 were bound by the terms of the potta granted to defendant 6 which created a permanent and transferable interest in favour of the latter and as the plaintiffs purchased the suit lands by a registered kobala and duly paid the landlords' fees they became tenants since the date of their purchase and no question of recognition did arise. The decree which defendants 1 to 3 obtained against defendant 6 was therefore not binding on the plaintiffs and they were not in any way affected by the execution sale. On these findings, the trial Court decreed the plaintiffs' suit. Defendant 3 alone took an appeal to the lower Appellate Court against this decision. Although the main point taken on behalf of defendant 3 in the trial Court was that as he was a minor at the time when the potta was executed he was not in any way bound by the same, yet this contention was not raised on his behalf in the appeal preferred by him. There were two other points raised before the lower Appellate Court on his behalf both of which found favour with the learned District Judge who allowed the appeal and dismissed the plaintiffs' suit. The first ground upon which the District Judge allowed the appeal was, that there was an express covenant contained in the potta granted to defendant 6, which created the lease, to the effect that though the lessee would be at liberty to transfer his interest, yet he would remain liable for rent so long as the relationship of landlord and tenant was not established between the landlord and the transferee. It was held that under this covenant, which was valid and enforceable, defendant 6 remained liable for rent as the plaintiffs were not recognized as tenants by defendants 1 to 3 and consequently the rent decree against defendant 6 and the sale in execution thereof were binding on the plaintiffs. The second ground accepted by the District Judge was that the previous suit for injunction commenced by the plaintiffs against defendants 1 to 3 having been dismissed, the present suit was barred under Order 2, Rule 2, Civil P.C. The propriety of both these grounds have been challenged before me by the learned advocate who appears for the plaintiffs-appellants.
3. As regards the first point I have no doubt in my mind that it is quite possible to insert a stipulation in a permanent lease providing for the fulfilment of certain conditions, without which a transfer by the lessee would not be binding on the land-lord. Thus there may be a covenant that the transferee should furnish security or that he should pay a mutation fee and. unless these are done, the transferor would not be absolved from his liability to pay rent and the landlord shall not recognize the transferee: vide Dinabandhu Roy v. W.C. Bonerjee (1892) 19 Cal. 774 and Nabjan Sardar v. Neburali Molla : AIR1933Cal506 . In the present case the clause of the potta Ex. 11 which is material for our present purpose and upon which reliance has been placed by the District Judge t runs as follows:
You will be entitled to possess and enjoy lands with great felicity down to your sons, grandson and heirs and successors with rights of transfer of all sorts in case of transfer so long as the transferee does not establish the relationship of landlord and tenant with us till then you with your heirs and successors would remain liable for rent.
4. This clause does not provide for anything being done for the transferee, e.g., by way of furnishing security or paying any mutation fee before the transfer can be recognized by the landlord. It simply says that so long as the relationship of landlord and tenant is not established between the lessor and the transferee, the transferor would not be exempted from his liability to pay rent. In my opinion, the landlord wants to make it sure that the transferee has become in law liable to pay rent before he loses his hold on the old tenant and absolves him from his obligation to pay rent. In the present case as the lease is admitted to be a permanent one, the relation of landlord and tenant as between the lessor and the transferee is established as soon as the document is executed and registered and the landlords' fees are paid, and in my opinion the conditions in the lease have been complied with and the transfer must be regarded as operative and binding on the landlord. The interpretation put upon the clause by the lower Appellate Court does not seem to me to be at all reasonable. If that construction is accepted, the lessor will not only be able to dictate any terms which he chooses to the transferee before he accepts him as his tenant, but he will even be competent to refuse to grant him recognition without assigning any reason whatsoever, and this would clearly nullify the character of the lease as a permanent and transferable one and go against the whole tenor of the document. It is difficult to say why this clause was at all introduced, if the intention of the parties was to create a permanent lease. It may be that the parties had no clear idea as regards the position of the transferee under the law, but I am definitely of opinion that this clause did not lay down any further condition to be complied with by the transferee, than what is necessary in law to make him a tenant of the lessor. But even if the construction that is put upon the clause by the lower Appellate Court is accepted I do not think it would help defendants 1 to 3 in the present case. There has admittedly been a transfer of a portion of the tenure to Rustum and this transfer has been recognized by the landlords who are realizing separate rents from Rustum in respect of the lands purchased by him. After this the landlord cannot certainly hold defendant 6 liable for the whole rent reserved by the potta. I think the transfer which is contemplated by the potta is a transfer of the entire tenancy and that as there has been a transfer of a part of the lands already and the transferee has been recognized as a tenant, the clause has lost its force altogether and cannot be invoked when the rest of the tenure is sold. I hold therefore that on the first point the view taken by the lower Appellate Court is not right.
5. I now come to the second point as to whether the plaintiffs' suit is barred under the provisions of Order 2, Rule 2, Civil P.C. Here also I think that the view taken by the District Judge cannot be sustained. This point, it may be stated at the outset, was definitely abandoned before the trial Judge. Be that as it may, the records show that in the previous suit the plaintiffs prayed for injunction on the footing that they were in possession of the lands in suit and that defendants 1 to 3 as auction-purchasers were threatening to evict them. The suit failed on the ground that as the plaintiffs were already dispossessed, their remedy would be to institute a suit for possession. This suit they have now instituted. I do not think that Order 2, Rule 2 can in any way operate as a bar to the present suit. The cause of action on which the earlier suit was commenced could not certainly enable the plaintiffs to pray for a wider and larger relief than what they actually claimed in that suit and there is no question here of seeking to recover the (balance which they could claim on the earlier cause of action by any separate and independent proceedings. It may be that the cause of action that was put forward in the earlier suit was wrong but the provisions of Order 2, Rule 2, Civil P.C. could not be invoked since the relief that is now claimed could not be claimed on the cause of action which was the basis of the earlier suit. It is not contended before me that any question of title was decided against the plaintiffs in the earlier suit or that the present suit is barred by any rule of res judicata either actual or constructive. In these circumstances I am of opinion that the appeal must succeed on both the points. The judgment and the decree of the lower Appellate Court are set aside and those of the trial Court restored. The plaintiffs will get their costs against the heirs of defendant 3 in this Court as also in the lower Appellate Court, the costs to come out of the estate left by defendant 3. They will get costs against all the defendants in the trial Court.