1. This appeal is by the plaintiff. She purchased a certain patni from a purchaser at a sale held under the provisions of the regulation. The disputed lands consist of certain choukidari chakran lands which were resumed as long ago as the year 1899. There is a finding of fact that the lands were in the possession of the patnidar from 1917 to 1930. In the year 1930 the patnidar executed the lease Ex. 4 for these lands. It is an independant patni on a certain rent and not a mere agreement to enhance the rent of the original patni. This patni was also sold under the provisions of the regulation and purchased by the father of defendant 4. Defendants 1 to 3 are the tenants in actual occupation and the appeal against them was abandoned at the hearing. The question for determination is whether the plaintiff is entitled to these lands on the strength of her purchase. It is not disputed that the patnidar has a right to the settlement of choukidari chakran lands or that prior to the execution of Ex. 4, these lands would have passed on to an auction-purchaser.
2. In support of this appeal Mr. Janah contended that the plaintiff is entitled to succeed either under law or under the terms of Ex. 4. In my judgment the former contention must be overruled while the latter is entitled to succeed. In support of the first point, Mr. Janah argued that an auction, purchaser gets the patni in the condition in which it was at the time of its creation. In my opinion that is putting the case far too high. He would be in a better position than a purchaser of an estate sold for arrears of revenue. The true position is that a purchaser gets it free from incumbrances made by the patnidar, but he cannot ignore the acts of the zamindar. In the present case the zamindar made a separate patni and the plaintiff cannot ignore the transaction. The learned Subordinate Judge pointed out that the plaintiff has not purchased these lands. In this connexion Mr. Sen drew my attention to the decision in Brajendra Lal Das v. Deb Narain Tewari ('18) 5 A.I.R. 1918 Cal 905. That case is very similar to the present case. In that case the revenue authorities created a new estate of the chowkidari chakran lands instead of incorporating them in the present estate. It was held that the purchaser only purchased what the Collector sold, that is to say, the present estate excluding the choukidari chakran lands. Here the zamindar has done precisely the same thing. He created a separate patni for the chowkidari chakran lands and only brought the old patni to sale. The plaintiff's case must accordingly fail unless she can rely upon the terms of the lease itself. This point depends upon para. 22 of Ex. 4. It is perhaps not very happily worded but at any rate it has been translated for me in following terms:
If in future the patni right in lot gha (original patni is sold for arrears of rent or extinguished for any reason whatever, then with it the patni right of ours in the chakran lands would be takes to have been sold or extinguished. To this we shall not be able to raise any sort of objection.
3. I have not been able to understand precisely what the learned Subordinate Judge held in connexion with this paragraph. As far as I have been able to follow his judgment, he treated it as a personal covenant. I am bound to say that I am unable to find any covenant in it at all and it appears to me to be a term in the lease itself. Mr. Sen contended that it was void under Section 1. T.P. Act. But the lease does not create an absolute interest in favour of the patnidar nor has this clause anything to do with the manner in which the property is to be enjoyed. In my judgment apart from one word it would be a provision for the determination of the lease within the meaning of Section 111(b), T.P. Act. The lease would determine if the original patni is sold for arrears of rent or extinguished. There is no difficulty in ascertaining whether either of these events had happened, and in the present case it cannot be disputed that the former has happened.
4. But that of course would not be sufficient to entitle the plaintiff to anything more than a declaration that she is entitled to a settlement from the zamindar. There is however a further provision that the benefit of the lease will pass to a purchaser at a rent sale. It is therefore not open to the zamindar to dispute that the benefit of the lease has passed to the plaintiff. He has been made a party to the suit and he does not dispute her claim. She is therefore liable to pay to the zamindar the rent fixed in the lease. The provision is valid under Section 28, T.P. Act. The appeal is accordingly allowed in part. The decrees of the Courts below dismissing the suit are set aside and the plaintiff will be given a declaration of her title to the disputed land in suit and a further declaration that she is entitled to realise rent from defendants 1 to 3 at the rate of Rs. 55-8-0 per year. Her claim for khas possession is dismissed. Defendant 4 will pay the costs to the plaintiff incurred by her in all Courts. The plaintiff will pay the costs to defendants 1 to 3 incurred by them in all Courts. Leave to appeal under Clause 15 of the Letters Patent is granted.