1. In these appeals, the contesting appellant is Sirimati Bibi Taibatannessa Chowdhurani Saheba and the contesting respondent is Srimati Pravabati Dasi. The main point is dispute between them is, whether the appellant, under a purchase made by her of the entire durputni taluq Chuk Baharan on the 6th June 1904 at a sale in execution of a decree for arrears of rent brought against the original durputnidar by the putnidar, has acquired a good title to the whole taluq and whether, on the basis of that title, she can recover the full rents from the tenants of the taluq, or whether the respondent, under three purchases made by her of shares in the durputni, aggregating 8 annas 8 pies, on the 11th December 1903, 9th March 1904, and 19th May 1904, respectively, in execution of mortgage decrees obtained by her against some of the durputnidars has acquired encumbrances on the durputni to the extent of those shares which encumbrances the appellant has not legally annulled by notices issued on the 29th July 1907, and which, in consequence bar the appellant from recovering the rents in respect of those shares in the durputni.
2. The Court of first instance held that the encumbrances were acquired By the respondent by her purchases, but that they were annulled by the notices served on her by the appellant on the 29th July 1907, and that the appellant had acquired a good title, as purchaser of the whole durputni, to the whole of the rents from the tenants, and disposed of the suits accordingly.
3. On appeal, the lower appellate Court has held that the notices were not properly served by the appellant on the respondent under the provisions of Section 167 of the Bengal Tenancy Act within the period of limitation fixed by that section, and that, therefore, they were invalid, and that by them the encumbrances acquired by the respondent have not been annulled. The District Judge has set aside the decrees of the Munsif in all the suits and has decreed the appeals.
4. The judgment of the lower appellate Court, we may observe, has not been carefully worded but the meaning seems to be clear, Bibi Taibatannessa Chowdhurani Saheba has appealed to this Court in all the cases.
5. The facts of these cases are peculiar and the appeals must be decided in accordance with the law on the basis of these facts. It appears from the dates stated in the record that the suits to enforce the mortgages brought by Pravabati Dasi, the respondent and the proceedings taken by the putnidar against the durputnidar to enforce his claim for recovery of rent were instituted within a few months of each other and the respondent also appears to be one of the tenants of the durputni. It is, therefore, hardly open to the respondent to contend that she was not aware of the proceedings taken by the putnidar to recover arrears of rent. Indeed, a few days after the sale of the durputni and the purchase by the appellant on the 4th June 1904, she put in under Section 311, Code of Civil Procedure, an objection to the sale on the 2nd July 1904 and, after it had been decided in favour of the appellant on the 24th June 1905, she appealed against that decision to the High Court, with the result that the case was not finally decided by the High Court in favour of the present appellant till the 12th December 1906. Notices under Section 167 of the Bengal Tenancy Act were served by the appellant on the respondent on the 29th July 1907. The Court of first instance, on those facts, held that, for the purposes of these suits, the date of sale mentioned in Section 167 of the Bengal Tenancy Act was the date of the final confirmation of the sale by the High Court, and, as the notices were served on the respondent by the appellant within one year from that date, they were in time and operated to annul the encumbrances acquired by the respondent and gave the appellant title to the whole of the durputni. The lower appellate Court has held that the date of sale within the meaning of Section 167 of the Bengal Tenancy Act must be taken to be the actual date when the sale was held, and, that, as the notices were not served within one year from that date they were ineffectual to annul the respondent's encumbrances.
6. In these appeals, the main point urged is that there is, in these cases, no question of annulling encumbrances at all, but that the real question for decision is which of the two purchases, that is to say, that of the appellant at the sale in execution of the decree for arrears of rent or those of the respondent at the sales in execution of her mortgage decrees against some of the durputnidars gave priority of title. There can be little doubt that this was the view taken by the respondent when she put in her application under section, 311, Code of Civil Procedure, disputing the legality of the sale, at which the plaintiff purchased, and the validity of the plaintiff's title, and we think that this is the view which must prevail in these cases. Both the respondent and the putnidar at about the same time were seeking to satisfy their claims against the durputnidars by enforcing their respective liens against the durputni and the sales in execution of the decrees obtained on the basis of their respective titles took place within a few weeks of each other. The defendant respondent was fully aware of the arrears of rent and the first claim that the law gave to the landlord to recover the rents by sale of the tenure. Instead of discharging the landlord's claim and thus setting the estate free, for the enforcement of her Own liens under the mortgages, the respondent proceeded, in spite and in defiance of the landlord's claim to sell up and purchase portion of the holding. She afterwards disputed the validity of the appellant's title by putting in an application under Section 311 of the Code of Civil Procedure denying the legality of the sale at which the appellant had purchased and, having failed in that, she now claims the preferential title to portions of the holding purchased by her as against the title of the appellant to the whole holding sold in the enforcement of the landlord's claim. In such circumstances, the question really is who acquired prior title to the holding by her purchase and the question of annulling the respondent's purchases as encumbrances does not, in our opinion, really arise. We see no reason to differ from the view taken by this Court in the case of Gopi Nath Mahaptro v. Kashi Nath Beg 13 C.W.N. 412; 1 Ind. Cas. 35; 9 C.L.J. 234. We hold that the purchaser at the sale in execution of the landlord's claim for rent acquired a title to the whole of the holding preferential to that which the mortgagee by her purchases in execution of her mortgage decrees acquired in portions of the holding.
7. Furthermore, we are inclined, in a case like the present, to hold that the respondent cannot be heard to dispute the appellant's title on the ground of limitation which has been accepted by the lower appellate Court. The respondent being the person claiming to hold the encumbrances had, in the previous litigation, disputed the right of the appellant, the purchaser of the entire holding under the sale for arrears of rent, and thus denied the right of the purchaser to issue notices to annul the encumbrances. In consequence, the appellant, the purchaser of the entire holding, was involved in litigation to prove her title which was not concluded till the 12th December 1906. The notices were served within a year of that date. In such circumstances, in consequence of the conduct of the respondent who is the person claiming the encumbrances, the title of the purchaser under which she issued the notices under Section 167 of the Bengal Tenancy Act was not finally determined till it was substantiated before the High Court in December 1906, and the respondent having raised the dispute and caused the delay cannot, in equity, be allowed now to say that the title under which the appellant Claimed to issue the notices was perfected for the purposes of Section 167 of the Bengal Tenancy Act, on the 4th June 1904.
8. The result, therefore, is that we decree all the appeals, set aside the judgment and decrees of the lower appellate Court and restore the judgment and decrees of the Court of first instance with costs in all Courts.