1. This is an appeal against the decree of the lower appellate Court dismissing the plaintiff's suit for khas possession. It was originally argued before R.C. Mitter, J., and it has now come before us on a reference by him. The substantial point urged before us is whether a decree in execution of which the plaintiff alleges that he purchased a certain tenure was a rent decree or a money decree. The landlords instituted the suit against the recorded tenants on 15th April 1920. They put up the holding to sale and it was purchased by the plaintiff on 7th April 1922. He obtained possession on 21st July 1922. It appears that the interest of one of the tenure-holders, Sashi was put up to sale in execution of a money decree and purchased by one Kunja on 12th November 1919. The sale however was not confirmed till 7th September 1922, (that is to say, after the plaintiff's purchase) and he did not obtain delivery of possession until 2nd December 1922. The contesting defendant 1 had an interest which was annulled by the plaintiff by the service of a notice under the provisions Section 167, Bengal Tenancy Act.
2. Now it is not suggested that the landlords knew of Kunja's purchase in the execution sale. It has accordingly been contended on behalf of the appellant that inasmuch as the recorded tenants were all made parties to the rent suit, the tenure passed at the sale. In support of this contention reliance was placed upon the decision reported in Profulla Kumar Sen v. Salimulla Bahadur 1919 Cal 62. On the other hand it is contended on behalf of the contesting respondent that only the right, title and interest of the judgment-debtors passed on the authority of the case reported in Faridpur Loan Office, Ltd. v. Nirode Krishna Ray 1929 Cal 452. It is to be observed that although Kunja's purchase took place before the institution of the rent suit, the sale was not confirmed until long after. But the property vests in a purchaser from the date of the sale and not from the date of the confirmation and he would be liable for the rent from the date of the sale: The point at issue is whether the landlord, in order to obtain a rent decree must sue all the actual tenants or whether it is enough if he sues those whose names are recorded in his Sherista. The case of Profulla Kumar Sen v. Salimulla Bahadur 1919 Cal 62 which was decided by N.R. Chatterjea and Newbould, JJ., is an authority in favour of the appellant. The learned Judges observed as follows:
The property sold was described as an entire tenure; and as the decree was obtained by the plaintiff against the recorded tenants, we think that what was intended to be sold and was sold was the tenure itself, and not merely the interest of defendants 1 to 5 .... We are of opinion that the entire tenure including the interest, if any, of defendant 6 passed by the sale to the plaintiff.
3. On the other hand the case of Faridpur Loan Office, Ltd. v. Nirode Krishna Ray 1929 Cal 452 which was decided by Rankin, C. J., and Page, J., lays down that it is not enough for the landlord to implead the recorded tenants if, in fact, the interest of any of them passed to a third person unless there are circumstances to show that the tenants impleaded represented the whole estate. In this connexion we need only say that as at present advised we should be disposed to agree with the judgment of Page, J. But in our opinion it is not necessary to pursue the matter any further or to consider whether we should refer the case to a Full Bench, as we are not satisfied that it was open to defendant 1 to raise this defence at all. Defendant 1 does not claim through Kunja. The effect of the decision of the lower appellate Court is that Kunja is liable for the rent, although Kunja was not a party to the suit. Defendant 1 has no direct interest in the; matter and merely wishes to put forward Kunja as a shield.
4. Now there is a most important question on which the Courts below differed. The contention of the plaintiff is that Kunja was a mere benamidar and the learned Munsif found in his favour ; but this decision was reversed by the learned Subordinate Judge. No doubt the question whether the transaction was benami or not is a question of fact. But we find it difficult to say that the judgment of the learned Judge is a proper judgment of reversal. All he says is this:
I am afraid there is no evidence in the circumstances to hold that Kunja was a benamidar for Sashi.
5. There was certainly circumstantial evidence to justify an inference that Kunja was a mere benamidar, and unless the final Court of fact considers that evidence, it cannot be said that he has properly reversed the decision of the trial Judge. It is therefore not possible to hold that this question of fact has been properly determined. Had it been necessary to decide the point, we should have been compelled to remand the case for further consideration. There can be no doubt that if the finding of the learned Munsif is correct, the tenure passed to the plaintiff. The delivery of possession to Kunja was only symbolical and he could not recover possession from the plaintiff without instituting a suit for a declaration of his title. It does not appear that he has even attempted to do so and it may well be that such a suit has now become barred by limitation. In these circumstances, it would be rather strange if defendant 1 could defeat the plaintiff's claim by a mere assertion that Kunja has an interest in the holding.
6. We are of opinion that without obtaining a declaration in the presence of both the plaintiff and Kunja that Kunja has an interest in the tenure and is liable for rent, such a defence is not open to him. The result is that this appeal must be allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored. Defendant 1 will pay the costs to the appellant in all Courts.
7. I agree.