W. Comer Petheram, C.J.
1. The plaintiff in this suit is a person who, in the month of Srabtn 1289 (July 1882), purchased a putni by private sale. At the time of his purchase, the land, which was the subject of the putni, was in the possession of the defendant as durputnidar, he having bought it at an auction sale for arrears of rent due upon the tenure, some six months previously, and at the time of these purchases there was due to the zamindar, or the superior landlord of the whole, three years' rent at the rate of Rs. 43 a year, that rent having become due before either the plaintiff or the defendant had got on to the land.
2. By the terms of the durputni under which the former durputnidar, whose tenure has now passed to the defendant, held the property, he was to pay to the putnidar, who, since the purchase, is represented by the plaintiff, the sum of Rs. 73 annually; Rs. 43 was to be paid to the zamindar in discharge of the putni rent; and the remaining Rs. 30 to his (the defendant's) immediate landlord, the putnidar, now represented by the plaintiff.
3. That being the state of things, the zamindar obtained a decree against the plaintiff's predecessor in title, or at all events, in the name of the plaintiff's predecessor in title (he being the person whose name appeared in his sherista), for the three years' arrears which were due from the putnidar to him, and in satisfaction of that decree he advertized the putni for sale. The plaintiff, the then putnidar, did not pay the money covered by the decree, but it was the defendant who did so, and thus saved the putni from being sold.
4. It must be borne in mind that the decree was for a sum of money for which the putni was liable to be sold in whosesoever hands it might be found, and upon the sale of the putni, all the subordinate interests, including that which had come into the hands of the defendant, would have fallen in, and the zamindar would have been in a position to turn out all under-tenants and take the land into his own hands.
5. It must also be borne in mind that the person who was personally liable to the zamindar for the rent, at the time when it became flue, was the former putnidar. Under these circumstances, it is clear that the present plaintiff could not be personally liable for the rent, because he made no contract with the zamindar to pay it, and his interest only came into existence after, the money became due.
6. If this were a matter to be decided without reference to legislation, I should be disposed to say that the defendant was not entitled to set these payments against the plaintiff's claim for rent, which became due subsequent to his, the defendant's, purchase of the durputni. But this is not a matter which can be decided in that way; it must be decided with reference to Section 13 of Regulation VIII of 1819 as extended by Section 62 of Bengal Act VIII of 1869 to under-tenures under this Act, and then the question arises, whether the meaning of those sections is, that the holder of a subordinate tenure of this, kind, who, for the protection of the whole tenure, makes a payment to the zamindar, which the owner of the tenure above his ought to have paid, is entitled to deduct the amount so paid from the rent payable to his putnidar, in whosesoever hands the putni may be, or to treat the sum as a loan made to the person who, at the time of the payment, happens to be the owner of the putni.
7. This regulation has received judicial interpretation. In the case of Nobogopal Strcar v. Srinath Bandopadhya I.L.R. 8 Cal. 877 this Court held that the durputnidar is to treat the proprietor of the putni as his debtor, whether the original rent accrued in his time or not. I think that that decision, unless we are clearly of opinion that it is wrong, is binding upon us; and having regard to that fact, and also to the fact that, reading that Regulation carefully, it seems that the meaning of the Legislature was that which is put upon it by the Judges of this Court, and bearing also in mind that the tenure held by the plaintiff was primarily liable for the claim of the zamindar, I think that we must follow that case; and in that view 1 think that the appeal must be dismissed with costs.