1. These are appeals against three decrees of the District Judge of Birbhum affirming the decrees of the Munsif of Rampurhat decreeing three rent suits but rejecting the plaintiff's claim in each case for the Ashar kist of 1351 B. S. The appeals are by the plaintiff and relate to the rent of this kist.
2. The sole question that arises for decision is the relative position of the plaintiff as girbidar or statutory mortgagee under Section 13 (4), Regulation VIII  of 1819. The plaintiff is a darpatnidar in respect of a patni held under the Maharaja of Burdwan. He came into possession of the patni under the provisions of Section 13 (4) in 1330 B. S. by depositing in the sale proceedings under the Regulation the amount of rent due for the patni. Subsequently, execution of a rent decree obtained by the Maharaja for rent of the patni, the patni was sold in auction in Rent EX. case No. 37 of 1940, the sale being confirmed on 5-5-1944.
3. The defendants contend that the plaintiff is not entitled to sue for or obtain any rent after that date. Both the lower Courts have upheld the contention.
4. The lower appellate Court has referred to the decision in A. H. Forbes v. Bahadur Singh, 41 I. A. 91: (A. I. R. (1) 1914 P. C. 111) but has disposed of that decision by saying that the rent suits sought to be executed in that case were for rent due and decreed prior to the period for which rent was deposited by the appellant Forbes under Section 13 (4), Patni Taluks Regulation. In my opinion, the decision in question cannot be disposed of in this fashion. The real basis of the decision in that case was no doubt that the plaintiff who was seeking to execute the rent decree was no longer the landlord at the time of execution. The zemindar Dhanpat Singh the predecessor had before his death obtained the decree for the patni rent and transferred the decree to trustees. The zemindary itself had been transferred to another party. However, their Lordships of the Judicial Committee very clearly dealt also with the question arising under Section 13 (4), Patni Taluks Regulation, and they said that this objection formed an equally fatal objection to the application of the contesting defendants to bring to sale the patni tenure in execution of Dhanpat Singh's decree, That fatal objection was in their opinion clearly expressed namely that the appellant Forbes had made the deposit under Section 13 (4), Patni Taluks Regulation, and obtained a lien specified therein which has
been described in the judgment as 'statutory salvage lien' arising not from any implication of the law bat under the express direction and declarations of the Act. They then continued :
'Regulation VIII  of 1819 being thus, as already observed, a self-contained Act, embodying the rules relative to the rights of zemindars and patni taluqdars, the Legislature in enacting Act VIII  of 1885 excluded in express terms from the operation of the Tenancy Act the special legislation relating to patni tenures. Section 195 of Act VIII  of 1885 declares (omitting the immaterial portions) that 'nothing in this Act shall affect .... any enactment relating to patni tenures, so far as it relates to those tenures'. The plaintiff's right to hold that the patni taluq exempt from any proceeding under the Tenancy Act is founded on steps taken by him under the Patni Regulation.'
The reasoning in that is in no way affected by the question as to whether the decree for rent on which the sale of the patni under the Bengal Tenancy Act was sought to be based was obtained in respect of rent prior to or after the date on which the other party acquired his lien under Section 13 (4), Patni Taluks Regulation. The learned advocate for the respondent has referred to Section 171, Bengal Tenancy Act, and incidentally to the case of Sailendra Nath v. Madan Mohan, 46 C. W. N. 704, a case under that section. The reference in my opinion in no way assists the respondent's case. No doubt Section 171 makes some, what similar provisions for a statutory salvage mortgage under the Bengal Tenancy Act as is provided in Section 13 (4), Patni Taluks Regulation bat Section 171 (1) (b) specifically provides that the
'mortgage shall take priority of every other charge on the tenure or holding other than a charge for arrears of rent.'
Thus the very point in question here is specifically provided for under Section 171 and in the decision quoted it is laid down that because of this provision the statutory mortgagee is a necessary party in a suit for rent by the landlord because he is in the position of a second mortgagee, the landlord being the prior mortgagee in respect of the rent. The whole question for decision here is whether the charge under Section 65, Bengal Tenancy Act, is a charge superior to that given under Section 13 (4), Patni Taluks Regulation. The Patni Taluks Regulation was enacted many years before the Bengal Tenancy Act Came into force. Section 195 of the later Act specifically provides that nothing in it is to affect the provisions of the Regulation and the Judicial Committee in the words just quoted above would appear to make it clear beyond argument that the lien given under Section 13 (4) of the Regulation is not affected by any provision of the Bengal Tenancy Act. The very fact that when in Section 171, Bengal Tenancy Act, a similar provision was being made it was deemed necessary specifically to provide that the lien given there was secondary to that given in Section 65 of the same Act shows that it was there understood that some provision was necessary as to the relative positions of the liens given under Sections 65 and 171. There was nothing to prevent similar provisions being made in the Bengal Tenancy Act as a proviso to Section 195, for example, if it were intended that the lieu given under Section 65. Bengal Tenancy Act, was to be superior to that given in Section 13 (4), Patni Taluks Regulation.
5. The result is that in my opinion the reasons given by the lower Courts for rejecting the plaintiff's claim in respect of the rent for the kist of Ashar 1351 B. S. are not valid.
6. In Appl. No. 1753, it is pointed out, however, that no appeal lay in the first instance in view of the provisions of Section 153, Bengal Tenancy Act, the amount being less than Sections 100 and no second appeal lies here. The decree in the corresponding suit will stand. The decrees in the other two suits will be amended to include the rent, cess and damages for the Ashar kist of 1351 B. S.
7. Appeal No. 1753 accordingly stands dismissed. There will be no order for costs in this case. Appeals Nos. 1751 and 1752 are allowed and the decree of the trial Court will be modified to include rent, cesses and damages for the Ashar kist of 1351 B. S. The plaintiff will be entitled in both these cases to his costs throughout.
8. Leave to appeal under Clause 15 of the Letters Patent has been asked for and is refused.