1. Purha and Paban, two brothers, held 7 highas of jote at a jama of Rs. 9. In 1292, defendants Nos. 1 to 3 who were four annas landlords took from Purna a qabuliat in respect of 5th of the land, namely 1 bigha 15 cottas oat of the 7 bighas, the boundaries given being, those of the 7 bighas.
2. It is contended that this created the defendants Nos. 1 to 3, the 16 annas landlords in relation to Purna and, therefore, when defendants Nos. 1 to 3 obtained a decree for arrears against Puma's son and sold the said land, 1 bigha, 15 cottas and themselves made the purchase, they acquired an indefeasible interest in the land against which, the title of the plaintiffs, arising under a purchase in execution of a decree on a mortgage prior to their decree and purchase, could not prevail. The fact of the boundaries being that of the entire holding, is I think, a settler and the defendants must be considered as fractional co-sharers. This is clear from the definition of the word holding in Section 3 Clause (9) of the Bengal Tenancy Act. See the cases of Hurry Churn Bose v. Ranjit Singh 25 C. 97 : 1 C.W.N. 521, Baidya Nath Dey Sarkar v. Sheikh Jhin 2 C.W.N. 44 : 25 C. 917, Haribole Brohmo v. Tasimuddin Mondul 2 C.W.N. 680 and Ahadulla Shaikh v. Gagan Mollah 2 C.L.J. 10.
3. The decree, therefore, obtained by defendants Nos. 1 to 3 is not a rent decree within the meaning of Tenancy Act.
4. It is contended, however, that even if the decree is not a rent decree, the defendants are entitled to claim the benefit of the special limitation under the Bengal Tenancy Act and they could certainly have stood their ground if they had dispossessed the plaintiffs in their capacity of landlords. See the cases of Parameswar Namasudra v. Kali Mohan Namamdra 4 C.W.N. 801 : 28 C. 127 and Annanda Sundari Chandalini v. Kebulram Changa 7 C.W.N. 542. But they rely upon their purchase in execution and they dispossessed the plaintiff under that title. They cannot, therefore, claim the aid of Article 3, Schedule III of the Bengal Tenancy Act. See the cases of Abhoy Churn Mookerjee v. Sheikh Titu 2 C.W.N. 175, Brojo Kishore Mahapatra v. Saraswati Dasi 6 C.W.N. 333, Mahamed Khalil v. Hirendra Nath Bhattacharya 5 C.L.J. 650 and Hira Chandra v. Umesh Chandra 11 C.L.J. 20 : 14 C.W.N. 71 : 5 Ind. Gas. 39.
5. As regards the last point raised that the defendants are entitled to raise the question of the transferability of the holding and plead that the plaintiffs have purchased nothing, I think the point has been decided against the said view in several cases. [See the cases of Bhagirath Changa v. Shiekh Hafizuddin 4 C.W.N. 679, Ambica Nath Acharjee v. Aditya Nath Moitra 6 C.W.N. 624, Ayenuddin Nasya v. Srish Chandra Banerji 11 C.W.N. 76, Hara Chandra v. Umesh Chandra 11 C.L.J. 20 : 14 C.W.N. 71 : 5 Ind. Gas. 39.
6. The appeal, therefore, fails on all the points and is accordingly dismissed with costs.