1. The plaintiff-respondent sought to recover possession of the disputed land as putnidar under the patni patta, dated the 23rd May 1913, granted by the then proprietor of the estate. It appears that one Prokash Saha purchased the estate at a sale for arrears of revenue in 1909 and sold the same to one Diwanat Ram and others. The plaintiff obtained the patni from the latter, and brought the suit out of which this appeal arises, to recover possession of the disputed land from the defendants who were in adverse possession thereof for about 25 years, alleging that Prokash Saha had purchased the estate free from incumbrances. The suit was dismissed by the Court of first instance on the ground that Prokash Saha was benamdar for the outgoing proprietors, and that the plaintiff's patni was also a benami transaction. On appeal the lower Appellate Court, not dissenting from the finding of the Court of first instance on the first point, was of opinion that the defend ants' incumbrance had been annulled by a previous sale which took place in 1907 which was within 12 years of the suit, and as there was no reliable evidence to show that the plaintiff was benamdar for Diwanat Ram and others, decreed the suit.
2. It appears that subsequent to the revenue sale held in 1909 and the Patni settlement under which the plaintiff claims, there was another revenue sale held on the 24th September 1913 at which certain other persons were the purchasers and they had recognized the plaintiff's patni by receiving rent from him. In second appeal by the defendant No. 14, it was contended that even if the purchaser at the sale held in 1913 could have avoided the incumbrance of the defendants, the mere receipt of rent from the patnidar did not confer any rights upon the plaintiff which would entitle him to question the rights of the defendants, whatever they may be. On behalf of the plaintiff respondent it was contended that he derived his rights under the Patni settlement from the assignee of the purchaser at the previous sale (held in 1909) and that the patni was a tenure which could not be avoided under Section 71 (b) of the Assam Land and Revenue Regulation. The case was, therefore, remanded for a finding whether the patni 'of the plaintiff falls within the class of tenures described in Section 71 (c) of the Assam Land and Revenue Regulation.
3. The Court below has arrived at the finding that the Patni settlement was not bona fide, and, therefore, does not come under Section 71 (c) of the Assam Land and Revenue Regulation. It is contended on behalf of the respondent that the Court below had no power to arrive at the finding that the Patni settlement was not a bona fide one, in the face of the finding of the lower Appellate Court (before remand) that the patni was not benami. It is true that the lower Appellate Court before remand did find that the patni was not benami, but that Court (before remand) does not appear to have taken into its consideration all the facts upon which the Court of first instance found that the transaction was not bona fide. On remand the learned Subordinate Judge, in deciding the question whether the patni falls within the class of tenures described in Section 71 (c) of the Regulation, took all the facts into his consideration. It is further contended on behalf of the respondent that it is not for the defendant to impeach the Patni settlement merely on the ground that there was no consideration for it. But the learned Subordinate Judge has found that the ' Creation of the patni patta was merely a contrivance to secure the land in suit, so that any subsequent auction purchaser of the estate may not venture to stretch his hands on the same, it being valuable property in the heart of a town and yielding an income from the several Cash holders.'
4. But apart from that, we think the decision of the lower Appellate Court is erroneous. It holds (differing from the finding of the Court below on the point) that the purchasers at the sale of 1907 were not benamdars for the outgoing proprietors, and that the incumbrance of the defendants came to an end in 1907; so that the suit having been brought within 12 years of the auction-sale was not barred. But incumbrances are not ipso facto annulled by a sale, and the purchasers at the sale held in 1907 did not annul the incumbrance. So far as the defaulters (i.e., the purchasers at the said held in 1907) were concerned, their right came to an end by the sale of 1909, and along with it the power to annul incumbrances. If the purchasers at the sale held in 1909 had not purchased the estate free from incumbrances, we do not see how they could exercise the right of annulling incumbrances which the purchasers at the previous sale (held in 1907) had, and which, as stated above, came to an end by the sale held in 1909. And if they could not exercise such right?, the plaintiff cannot have such right by virtue of a Patni settlement obtained from their assignees. The plaintiff can only claim the right if their lessors who derived title under the purchase of 1909 had purchased the estate free from incumbrances.
5. It is true the purchasers at the last sale (of 1913) acquired the estate free of inaumbrances, but they merely recognised the plaintiff's patni by receiving rent from him. They themselves did not exercise the right to annul incumbrances, nor confer such right on the plaintiff. The plaintiff's patni was confirmed by receipt of the rent, but he acquired no right to annul incumbrances.
6. We are accordingly of opinion that the decree of the lower Appellate Court must be set aside, and that of the Court of first instance restored with costs.