1. The lands to which these appeals relate are portions of two holdings of 235 bighas and 50 bighas respectively which were settled in 1585 with two persons named Manik Mollah and Kabiruddi Mollah. The plaintiffs are purchasers of these portions. The landlord sued the recorded tenants for rent, obtained decrees and, in execution of these decrees, attached the holdings. The plaintiffs brought these suits for declarations, that these rent-decrees were inoperative as against them and for other reliefs. The suits have been decreed by the Courts below and the defendant No. 1 appeals.
2. The first ground taken by the learned Counsel for the appellant is that the plaintiffs have no cause of action inasmuch as their rights have not yet been prejudiced. The observations of the learned District Judge that the jamas have been sold in execution of the rent decrees are said to be inaccurate as nothing has yet been done beyond attaching the property and it is said that a mere attachment is not a sufficient invasion of a person's right to give him a cause of action. It is, however, a very common experience that suits are brought in consequence of the attachment of property, and the Civil Procedure Code allows claims to be made when such an attachment is made. No authority has been shown to me for holding that an attachment does not justify a suit and I am not prepared to hold that the suits are not maintainable on that ground. I may point out also in this connection that the point has never been raised in the Courts below.
3. The second point taken is that, having regard to Sections 73 and 88 of the Bengal Tenancy Act, the landlord is entitled to sue the recorded tenants alone. As regards Section 73, that applies only to cases of occupancy ryots. The holdings of Manik and Kabiruddi, when originally created, were holdings of ryots at fixed rates. It is argued that, inasmuch as Manik and Kabiruddi sold portions of their holdings to various purchasers including the plaintiffs, the position of the purchasers cannot be regarded as that of ryots at fixed rates but it must be deemed that they have fallen back into the position of ordinary occupancy ryots. I do not think that this view can be sustained. A ryot at fixed rates under Section 18 of the Bengal Tenancy Act is entitled to sell shares of his holding and from the case of Baistab Charan Chowdhury v. Akhil Chandra Chowdhury 11C.W.N. 217 it is clear that this section also entitles him to sell specific portions of his holding. The mere fact that he exercises this privilege and sells portions of his holding to several purchasers cannot, I think, alter the conditions of the holding and reduce the purchasers to the position of ordinary occupancy ryots.
4. Reliance has been placed on the case of Uday Chandra Karji v. Nripendra Narain Bhup 1 Ind. Cas. 4 : 13 C.W.N. 410 36 C. 287. That case seems to me to be distinguishable. The question for decision in that case was whether, when a tenure had been divided into two, each half could be regarded as having a tenure existing from the time of the permanent Settlement within the meaning of Section 50 of the Bengal Tenancy Act, and the decision proceeded, principally on the special wording of Clause (3) of that section. I think, therefore, that Section 73 of the Bengal Tenancy Act has no application to the present case: and the case of Baistab Charan Chowdhury v. Akhil Chandra Chowdhury 11C.W.N. 217, to which I have already referred, shows that the landlord, in suing for rent, was bound, if he was aware of the purchase by the plaintiffs, to make the plaintiffs parties to the suit. Against this decision reliance has been placed on the case of Rammoyi Dasi v. Rupai Pramanick 13 C.L.J. 267 : 9 Ind. Cas. 801, Infra. The head-note of that case is misleading. It is to the effect that the landlord cannot be held bound to make the purchaser of a portion of a permanent holding or tenure a joint defendant with the defendants, who are the only persons recorded as tenants in the landlord's sheristha. A reference to the decision itself shows that the law is not laid down in these broad terms but that the respondents were not allowed to raise that particular defence in appeal as it had not been raised in the pleadings.
5. As regards Section 88 of the Bengal Tenancy Act, it is argued that there is no evidence on the record at all to justify the findings of the Courts below that the landlord had recognized the sub-division of the holdings. The findings of the Courts below on this point are very distinct. The Munsif says,--'I find from the oral evidence adduced in the case as well as from entries B2 to B7 in the kacha books of the said landlords which have been filed in this case that rents were accepted from these plaintiffs and this fact is proved by the receipts Exhibit No. 3 and Exhibit No. 3A'; and the District Judge says,--' It is proved conclusively that the appellants had notice of the transfer and that they, treated the respondents as tenants of the shares purchased by them.' If it was intended to argue that findings as definite as these were not based on any evidence at all, I think that that ground should have been clearly stated in the grounds of appeal. An argument of this kind can hardly be dealt with satisfactorily unless the evidence--some of which is in vernacular--is placed in its entirety before the Court. Moreover, the point is not raised in the issues in the case at all. It is, therefore, very inconvenient, if not impossible, in second appeal to deal with a pure question of fact of this nature. It appears to me, too, that the matter is not really of much importance. Even if the defendant had not recognised the sub-division of the holdings under Section 88 of the Bengal Tenancy Act, nevertheless it is clear that he was aware of the transfers; and he was bound, tinder the ruling I have cited, to make the plaintiffs parties to his rent-suits. As he did not take this course, whether the sub-division of the holdings had been recognised or not, the decrees as against the plaintiffs must be regarded as inoperative.
6. Finally, an objection has been taken to the form of the decree, and certainly that of the lower Appellate Court is confused and difficult to understand. Apparently, the order of the first Court has been confirmed; but a number of modifications have been made and it is very difficult to say exactly how much of it remains and how much is set aside. It appears to me that the plaintiffs are entitled to a declaration that the rent-decrees are inoperative as, against them and that the holdings cannot be sold under these decrees so as to affect their interest. They are entitled also to the declarations given to them by the District Judge that they are the purchasers, with due notice to the landlord, of the shares of the transferable jamas in suit. To these declarations they are clearly entitled, and these' should be substituted for the reliefs granted. This makes little, if any, practical difference to the suit, and, subject to this slight modification in the form of the order portion of the decree, the appeals are dismissed with costs.