1. The main facts of the suit out of which this appeal arises, are not in dispute.
2. Defendant No. 13, one Ramjiban Bhadra, was the holder of a mortgage of a certain patni executed in his favour by the patnidars in 1894. On this mortgage he sued on the 3rd March 1902, and he obtained the usual decree on the 17th May 1905.
3. Meanwhile there had been several defaults in the payment of the rent of the patni. In March 1901, the first of these occurred, and on that occasion Benode Behari Dey, who was the darpatnidar in respect of 17 3/4 gundas of the patni, advanced the arrear so as to save the tenure from sale under the Bengal Patni Taluks Regulation, 1819, (VIII of 1819), and was, in the following July, under the fourth paragraph of Section 13 of that Regulation, placed in actual possession. Benode thereafter, in October 1901, conveyed all his rights as darpatnidar to the plaintiff, Sheikh Taj-ud-din Kazi, who succeeded in due course to possession of the tenure and enjoyment of the profits thereof. In this situation, the plaintiff paid these instalments of the patni rent; but in 1903 he failed to pay the fourth as it fell due, and in consequence proceedings were once more taken under the Regulation, the patni being eventually put up for sale and purchased by Ramjiban Bhadra on the 15th May 1904. The surplus sale-proceeds, after satisfaction of the claim for rent, were deposited in the Collectorate, as provided by the Regulation, and the present action was brought by the Sheikh against the patnidars and others (including Ramjiban) for a declaration that he was entitled, before all others, to recover from that deposit the amount which he had paid for the original darpatni-dar's rights, as well as the three payments subsequently made by him on account of the patni rent. The claim was opposed by Ramjiban on the strength of his mortgage-decree; but it succeeded on the whole, and that defendant has now appealed.
4. The plaintiff-respondent's contentions, briefly put, are these, first, it is said that his charge is made paramount by the fourth paragraph of Section 13 of the Regulation itself. And then, the argument proceeds, apart from the Regulation, the rent is declared to be the first charge on a tenure by Section 65 of the Bengal Tenancy Act, 1885, (VIII of 1885), which does not interfere with and, therefore, as was explained in Durga Prasad Bandopadhya v. Brindaban Roy 19 C. 504 at p. 507, applies to patnis and supplements the law, relating thereto. The respondent, it is contended, is equitably entitled to be subrogated to the rights of the rent received and consequently to claim a similar first charge on the surplus sale-proceeds. In my opinion, these contentions are, in the circumstances of this case, unsound and unreasonable, and they cannot be allowed to prevail.
5. As was pointed out by this Court in Lala Bharub Chandra Karpur v. Lalit Mohun Singh 12 C. 185, while the respondent was in possession of the patni under the Regulation, he himself was liable to pay the patni rent to the superior landlord, the defaulting patnidars being relieved of the responsibility therefor for the time being. It is obvious, therefore, that he cannot claim any charge on the sale-proceeds in respect of the three instalments of the rent which he paid, and was, as I have shown, bound to pay. Nor do I understand how, when it was admittedly through his own fault that the tenure was brought to sale in 1904, he can appeal to equitable principles in support of his claim. No doubt, his case seems to have been that it was owing not to his fault, but to his misfortune in being prevented from collecting much rent from the tenants, that the fourth instalment after his entering into possession was not forthcoming, but I can find no evidence to prove that the appellant was to blame for that default by reason of his colluding, as is suggested, with the patnidars and seducing the ryots, while the evidence offered in proof of the allegation that, had the appellant not broken a promise to pay a substantial sum due from him as rent on the day fixed for the sale, the respondent would have been able to avoid defaulting, is singularly vague and altogether inconclusive and unconvincing. As regards this allegation, indeed, not only is it not shown that the appellant was a tenant at all, but it is admitted by the respondent in his evidence that in the papers filed by him no jama stands in the name of the appellant.
6. Then it seems to me that the fourth paragraph of Section 13 of the Regulation does not create the first charge which the respondent seeks to derive from its provisions. What it does give the person making an advance under it, appears to be tantamount to an usufructuary mortgage of the patni, for it declares that 'he shall be entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter in order to recover the amount so advanced from any profits belonging thereto.' The Regulation thus provides a particular relief, which was available for the respondent, and it appears to be at least doubtful whether it was open to him to seek another relief by setting up a salvage-lien such as that given by Section 171, Sub-section (1), Clause (6), of the Bengal Tenancy Act, 1885, in the case of a tenure or holding advertised for sale under Chapter XIV of that Act. Conceding, however, for the moment that it was, I think that he was bound to elect one or other remedy, and that, having by obtaining possession actually chosen the remedy provided by the Regulation, he, was confined to it, and it was not open to him to attempt, as he has done, to combine both remedies. The result appears to me to be that he is, at most, relegated to the position of a mortgagee; and, as his mortgage is of later date than the appellant's; he cannot possibly be yielded priority in proceedings against the sale-proceeds, to which, on the sale of the patni all mortgage-liens thereon were transferred by virtue of Section 73 of the Transfer of Property Act 1882, (IV of 1882). Nor can be, so far as I can perceive, have any claim on the basis of Section 69 of the Indian Contract Act, 1872 (IX of 1872). For it was not the appellant's duty, qua mortgagee, to discharge the patni rent; it was to protect his own interest alone that the respondent's vendor advanced the, arrear due in 1901, and it was in fact immaterial to the appellant whether the putni was then sold for arrears of rent or not, since on such sale his mortgage-lien must, as I have already indicated, have been transferred by operation of law to the surplus sale proceeds.
7. It has also been argued on behalf of the appellant that the respondent, having failed to institute a suit under the fifth paragraph of Section 17 of the Regulation, 1819, within the time---two months from the date of the sale--limited therefor, lost all remedy. But, in the view which I have taken of the case, it is unnecessary to consider this argument or the applicability of the provision referred to.
8. The result is that, in my opinion, this appeal must be allowed, the decree of the Court below discharged and the suit dismissed with costs in both Courts. The hearing fee, I would assess at five gold mohurs.
9. I agree.