Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learned Subordinate Judge in a rent suit, and it is in respect of rent from the last quarter of 1317 up to Pous quarter of 1319, and the defence is that the defendants have paid rent to the superior landlords in pursuance of an arrangement which they had with one Uakhina Kali Debi who was, at the time the arrangement was made, their immediate landlord.
2. Now, the plaintiffs claim as transferees of Dakhina Kali Debi's interest, and the only question that has troubled us in this matter is the question whether the defendants had in fact notice of the transfer from Dakhina Kali Debi to the plaintiffs before they had paid the rent to the superior landlords, because it has been found as a fact that they paid the rent for the period in question to the superior landlords and the learned Subordinate Judge has given a modified decree for sixty rupees per annum, which constitutes the balance due to the defendants' immediate landlord after the defendants had paid the superior landlords' rent. On this point the issue, which was raised in the first Court, was the third, namely, ' Did plaintiffs give notice of their purchase to defendants Nos. 1 to 3 ?'
3. The first Court held that the defendants in fast obtained notice of the plaintiffs' purchase, and the learned Munsif based his finding upon two matters: first, there was the document, Exhibit III, which purports to be a receipt or receipts of tenants of the taking of possession, and was addressed to one Umesh Chandra Ghoshal, gomasti, who, we understand, was the gbmasta of the plaintiffs; and signed by eleven individuals, and, the body of the document runs as follows. ' The Midnapore Zamindary Company Limited ' (who are the plaintiffs in this suit) 'have purchased by a deed of sale (khas kobala) from Srijukta Dakhina Kali Debi her Debipur Pattani right ' (then it gives the details), 'To-day you with men and persons and drums and timbers having come to Debipur village and having met with the tenants and having visited and demarcated the boundaries of Debipur Mouza and having fixed a bamboo in a prominent place and having obtained possession by beat of drums and we having witnessed it, we hereby sign our names.' Then it appears that one of the persons who signed that document was the Naib of the defendants. It is alleged that it was also signed by the goinasta of the defendants but the learned Subordinate Judge has said that the gomasta was called as a witness and he denied his signature: and I gather from that that the learned Subordinate Judge was not satisfied that he had signed it,--although there is no definite finding: but the learned Munsif found that the Naib of the defendants was one of the persons who had signed it; and, therefore, I presume he came to the conclusion from that fact that it must be inferred that the defendants had notice of this sale. The further matter upon which the learned Munsif relied was this, 'Dakhina Kali had deposed that shortly after the plaintiffs' purchase the defendants Nos. 1 to 3 wanted to pay her rents, when she told them to pay to the plaintiffs.' The learned Munsif on these two facts came to the conclusion that the defendants had obtained notice of the plaintiffs' purchase.
4. Now, when we turn to the learned Judge's judgment as regards the first matter to which I have referred, namely, that the Naib of the defendants had signed this document, his finding is this, The plaintiffs gave evidence of a general notice of their purchase to the tenants of the mahal, by taking possession thereof and by taking the signatures of tenants including the Naib and gomasta of the defendants on a receipt (Exhibit 3) in acknowledgment of the fact. The Naib is no longer in the defendants' service but the gomasta, Bholanath Biswas, who is also a tenant of the mahal, has denied his signature on the receipt. The mahal being in ijara, the plaintiffs had nothing to do with the tenants directly, and the notice contemplated ought to have been to them. Nothing has been stated in the plaint of the giving of a notice to them, and all that appears there is that they were aware of their purchase.' Then the learned Judge stops and he has not further dealt with that matter. So that it appears that the learned Subordinate Judge did not borne to any finding of fact upon the important point as to whether the defendants did in fact have notice of this purchase by the plaintiffs through their Naib as is found by the learned Munsif. Then, with regard to the second matter what he says is this: 'The transferor Dakhina Kali, who was examined as a witness for the plaintiffs, stated in her evidence that she informed the defendants of her intended sale to the, plaintiffs about a month before it took place, but not after that.'
5. Now, that is a summary of Dakhina Kali's evidence which is not consistent with the summary of her evidence as given by the learned Munsif, and, therefore, we looked at the evidence or rather a part of the evidence which was given by this woman Dakhina Kali Debi, and it appears that 'she said as follows: (This was a translation which was provided by the learned Vakil who was instructing the learned Counsel for the appellant, the accuracy of which is not disputed by the learned Vakil for the respondent) 'Afterwards after the sale I directed payment to the Shahebs. On the Chowdhuris coming to pay the rent, I told (them) that I have sold to the Shahebs; you can and should pay the rent to the Shahebs'. This property I gave in ijara to the defendants twice. They gave me a kabuliyat. I have made over the kabuliyat to the Shahebs.'
6. Now, the learned Vakil for the respondents, after seeing that extract from the evidence, agreed that; the learned Subordinate Judge apparently had summarised the evidence of Dakhina Kali wrongly. Therefore, there is that evidence of Dakhina Kali summarised, we must assume, correctly by the learned Munsif, namely, that after the plaintiffs' purchase defendants Nos. 1 to 3 wanted to pay rent to her and that she told them to pay it to the plaintiffs.
7. In view of that, finding by the learned Munsif which is not displaced by the judgment of the learned Judge, the 'question arises, ought we to hold in favour of the plaintiffs in this case that the defendants had in fact notice of the sale to the plaintiffs before they paid the rent in question to the superior land-lords. In Nobin Chandra Chowdhury v. Surendra, Nath Ghosh 7 C.W.N. 454, which has been cited to us, where a landlord transferred his interest to another person, and the tenant got notice of the transfer from the transferor, but the transferee did not give any notice, it was held that payments of rent made by the tenant to the transferor after such notice were not valid payments and the transferee was entitled to claim the same from the tenant. Now, apart from the other questions in this case which have been argued as to the sufficiency of the notice under Section 72 of the Bengal Tenancy Act, we are of opinion that if, as a matter of fact, she defendants had actual notice of the sale to the plaintiffs before they paid rent to the superior landlords, then the plaintiff a are entitled to succeed in this case; and the only question 'which has troubled us in this case is whether' we ought to act upon the findings of fact of the first Court, or whether we ought to remand the case to the lower Appellate Court for a definite finding of fact upon this point. We are of opinion that the case ought to be remanded. We regret it, because the suit was instituted sometime in 1913, and we are now in 1918, but I gather that both parties are well-to-do people, and I do not think that there would be any hardship if we remand this case. I think it will be more satisfactory if there be a distinct finding of fact upon this point by the Court which ought to find the fact than for us to, act upon the materials which are now before us; and one matter which has weighed with us in coming to this conclusion is the form in which the issue as to notice was framed, namely, 'Did the plaintiffs give notice of their purchase to defendants Nos. 1 to 3 ?' There was. no issue' framed in the way that I have described, namely, 'Did the defendants in fact have notice of the purchase before they paid rent for the period in question to the superior landlords?'
8. For these reasons I am of opinion that the case ought to be remanded to the lower Appellate Court for a finding of fact upon the issue which I have specified: and we think that it is not necessary in this case for the lower Appellate Court to hear any further evidence upon the point; the Court will have the evidence which has already been given in the case and will come to a finding of fact upon the point upon that evidence.
9. I hope that the lower Appellate Court will be able to take up this matter without any undue delay, so. that the case may be disposed of by him finally in accordance with this finding, We do not think that it is necessary that the case should come back to this Court because we have intimated the issue upon which it has to decide the case. If the lower Appellate, Court comes to the conclusion that the defendants had in fact actual knowledge of the transfer to the plaintiffs before they paid rent for the period in question to the superior landlords, then the lower Appellate Court should dismiss the appeal to that Court. On the other hand, if it comes to the conclusion that the defendants had not in fact actual knowledge of the transfer before they paid rent to the superior landlords, then it ought to allow the appeal.
10. Costs throughout (namely, the costs of the hearing in the Court of first instance, the hearing in the lower Appellate Court, the hearing in this Court, and the further hearing in the lower Appellate Court on remand) will follow the result. Costs of the additional paper-book will be added to the costs of the original paper-book as the additional paper-book was necessary for the disposal of the appeal.
11. I agree.