1. This is an appeal by the 1st defendant in a suit for recovery of possession of land upon establishment of title. The disputed area lies in lnt Nim tikuri, which was held by a family of Dutts in Zemindari and Patni interest in equal proportions. The appellant had a one fourth share in this property, which he mortgaged to the father of the plaintiffs on the 31st May 1892; he subsequently granted to the plaintiffs a second mortgage of his Patni interest on the 13th November 1803 and of his Zamindari interest on the 11th November 1904. The plaintiffs enforced these securities, and, at execution salts, purchased the Zamindari interest on the 19th November 1901 and the Patni interest on the 3rd July 1911. The land in suit is in the actual occupation of the Domes (the second and third defendants) who hold as sub tenants on payment of paddy rent. The case for the plaintiffs is that, notwithstanding their purchase of the Zemindari and Patni interests of the first defendant, they have not been able to collect rent from the Domes, because the first defendant has set up an unfounded right as intermediate Jotedar on the allegation that the land constituted a Jote of 16 bighas in the name of Kalliprosad Datta on an annual rental of Rs. 696. The plaintiffs denied the existence of the alleged Jote, and asserted in the alternative that if the Jote existed at any time it must have merged in the superior Zemindari and Patni rights. The plaintiffs accordingly asked for declaration of their title to realise rent directly from the Dome defendants and for consequential relief. The first defendant resisted the claim on the ground that the Jote had existed from time unknown, was not extinguished by merger in the superior interest, and was still owned by him as it had not been included in the mortgages which were the root of the title of the plaintiffs. On these pleadings, three issues arose for consideration, namely, (1) did the disputed lands form a Jote in the name of Kaliprosad Datta; (2) did the Jote right merge in the superior right as Zemindar and Putnidar; (3) did the plaintiff's mortgage include the same? The trial Court answered the first issue in the affirmative, and the second and third issues in the negative, and consequently, dismissed the suit. Before the lower Appellate Court, the decision on the first issue was not challenged but the Subordinate Judge held on the second issue that the Jote right was merged in the maliki right; in this view, the third issue did not arise, because if the Jote right was extinguished By merger, it could not have been included in the mortgages. The Subordinate Judge accordingly decreed the suit. On the present appeal, that decree has been assailed on the ground that the decision of the lover Appellate Court on the question of merger is erroneous in law.
2. The Subordinate Judge his relied on Section 111, Clause (d), of the Transfer of Property Act and Section 22 of the Bengal Tenancy Act in support of his conclusion that 'the ryoti right merged into the superior right as soon as the two rights superior malkhi right and inferior ryoti right-vested in the same parson or persons.' He has also fortified his opinion by reference to the decisions in Reed v. Sreekishen 15 W.R. 430 and Bool Chand v. Luthoo Moodee 23 W.R. 387 which are authorities merely for the proposition that a proprietor in occupation of land within his own estate cannot acquire the status of a ryot. The Subordinate Judge has, however, overlooked that neither Section 111, Clause (d), of the Transfer of Property Act nor Section 22 of the Bengal Tenancy Act is applicable, as in this case the union of the superior and subordinate rights took place before the date of these statutory enactments: Promotho Nath Mitter v. Kali Prasnna Chowdhry 28 C. 744. The foundation of the decision consequently disappears and we have to determine the question of merger, with reference to the law as it stood before 1882.
3. In the case of Womesh Chunder Gooyto v. Raj Narain Roy 10 W.R. 15 which was decided in 1868, Peacock, C.J., with the concurrence of Loch and Jackson, JJ., said: 'My own impression is that the doctrine of merger does not apply to lands in the Mofussil in this country.... I believe it is the practice in this country for Zemindars to purchase and keep on foot Patni Talooks without the necessity of adopting the practice, which is followed in England, of purchasing such Talooks in the name of a trustee to prevent the merger of them. If the doctrine of merger applies, a Zemindar could rot purchase and hold a Putni tenure in khas possession.' A similar view was expressed by Ainslie and Birch, JJ. in Thomas Savi v. Punchanun Roy 25 W.R. 503 and by Pigot and Banerjee, JJ. in Jibanti Nath Khan v. Gokool Chunder Chowdhry 19 C. 760 ; 9 Ind. Dec. (N.S.) 948. In the case last mentioned, the Court observed: 'No authority has been shown us for holding that the doctrine of merger applies to snob cases as this in India, that is, that a Putni interest must merge in the Zemindari interest, if they come into the same hands, and we do not think that we should for the first time, so far as we are aware, apply the doctrine to such, a case.' These decisions show that in cases unaffected by the provisions of the Transfer of Property Act and the Bengal Tenancy Act, the union of a superior and a subordinate interest did not, by operation of law, necessarily merge the subordinate in the superior interest, and this accords with the view expressed in Rushton v. Atkinson 11 W.R. 485; Lal Mahomed v. Jngir Sheikh 2 Ind. Cas. 654 ; 13 C.W.N. 913 and Hirendra Nath Dutt v. Hari Mohan Ghose 22 Ind. Cas. 966 : 18 C.W.N. 860. On the other hand, we have another class of decisions which support the proposition that although, in eases not touched by the Transfer of Property Act and the Bengal Tenancy Act, the union of the superior and subordinate interests may not automatically cause a merger of the latter in the former, the conduct of the party concerned may show that he did not intend to keep the two interests alive as mutually distinct rights; see Prosunno Nath Roy v. Jogut Chunder Pundit 3 C.L.R. 159; Suraj Narain Mandal v. Nanda Lal Sinha 33 C. 1212; Ulfat Hossain v. Gayani Doss 3 Ind. Cas. 994 ; 36 C. 802; Promotha Nath Roy v. Kishore Lal Saha 15 W.R. 430. Some of these decisions were largely influenced by a dictum of the Judicial Committee in Raja Kishendatt Ram v. Raja Mumtaz Ali khan 5 C. 198 P.C. 5 C.L.R. 213 6 I.A. 145 ; 4 Sar. P.C.J. 17 : 3 Suth P. C.J. 637 ; Rafique and Jackson's P.C. No. 58: 3 Ind. Jur. 406 ; 3 Shome L.R. 1 ; 2 Ind. Dec. (N.S.) 737, in favour of the possibility of merger of resumable birt tenures in a superior interest, the holder whereof did not take steps to keep them alive as distinct sub terures for his own benefit. The substantial question for consideration in the present case thus arises, do the surrounding circumstances indicate that after the Jote right had vested in the holders of the Zemindari and Putni rights, the latter treated the two as distinct interests. The trial Court, upon a careful analysis of the evidence, answered this question in the affirmative and the lower Appellate Court has not expressed its dissent from this conclusion. The most important facts mentioned in the judgment of the primary Court are as follows: (i) the Zemindari papers recite the existence of the Jote in quite recent years; (ii) the co-sharers of the appellant as also the plaintiffs themselves have mentioned the Jote in their road-cess returns filed subsequent to the mortgages, (iii) in 1880, when a share of the, Mehal was let out in Ijara, the farmer showed the Jote as in existence in his collection papers and in his road-cess returns. In our opinion the Court of first instance correctly held that the Jote did not, by operation of law, merge in the superior interest, and was all along treated as separate from the Mehal, was not included in the mortgages and never passed to the plaintiffs.
4. The result is that this appeal must be allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. This order will carry costs both here and in the lower Appellate Court.