Mookerjee, Acting C.J.
1. This is an appeal by the first defendant, the Maharaja of Burdwan, in a suit for recovery of money, and, in the alternative, for recovery of possession of land. The fasts material for the decision of the questions in controversy may be briefly stated: The subject-matter of the litigation is a putni taluq, Lot Surajpore, held under the Maharaja of Bardwan by Nanda Lal Lahiri, now deceased, the predecessor-in-interest of the Lahiri defendants. The Lahiris defaulted to pay rent to the Maharaja, with the result that proceedings were taken under Regulation VIII of 1819. On the 17th November 1914, the putni taluk was sold and purchased by one Nityananda Singha. The Lahiris thereupon instituted a suit for cancellation of the sale, on the ground that it had been held in contravention of the provisions of the Regulation. On the 7th January 1916, the suit was decreed and the sale was cancelled. It is stated that the Lahiris were subsequently restored to possession of the putni taluq. The Maharaja appealed to the Court of the Subordinate Judge, Daring the pendency of the appeal, while the validity of the sale was still in controversy, neither the Lahiris, the original putnidars, nor Singha, who had become purchaser at the putni sale, paid rent to the Maharaja. On this fresh default, proceedings were again taken by the Maharaja under the provisions of the Putni Regulation and on the 16th November 1916, a sale was held at which the plaintiff become the purchaser. The appeal preferred by the Maharaja was ultimately dismissed, with the result that the order made on the 7th January 1916 for cancellation of the sale held on the 17th November 1914 stood confirmed. On the 14th May 1917, the plaintiff paid rent to the Maharaja to prevent a further sale under the Putni Regulation. On the 6th June 1917, the plaintiff instituted this suit for recovery of a sum of Rs. 1139-14-9 pies. This included Rs. 640 (which had been paid by the plaintiff for his purchase at the putni sale on the 16th November 1916) together with interest thereon (amounting to Rs. 41-9-0) and a further sum of Rs. 456-0-9 pies (together with interest thereon Rs. 2-5-0) paid by the plaintiff to the Maharaja an rent to prevent the intended sale of 1917.
2. To the suit as originally, framed, the putnidar was not made a party, but on the 20th December 1917, the Lahiri defendants, the representatives of Nanda Lal Lahiri, were added by order of the Court. The plaint was amended at the same time by the insertion of the prayer that the plaintiff might be awarded possession of the putni mehal since the date of his purchase. The Lahiris did not appear to have filed a written statement or to have taken any interest in the litigation. The suit has been fought out between the plaintiff on the one hand and the Maharaja on the other.
3. The Court of first instance decreed the claim in fall and that decree has been affirmed by the District Judge, on the ground that both in equity and law the plaintiff was entitled to a refund from the Zemindar.
4. On the present appeal, it has been contended on behalf of the Maharaja that the plaintiff is not entitled to a refund because he acquired a good title to the putni by his purchase at the sale held on the 16th November 1916; in other words, that for the purchase-money which he paid on that occasion he has got the property and the rent which he subsequently paid was rent lawfully payable by him as the holder of the putni. The Lahiris have been added as respondents to the appeal, but they have not entered appearance. The appeal has been opposed on behalf of the plaintiff, who has taken up the position that he has not acquired any title and that the effect of the cancellation, on the 7th January 1916, of the first sale held on the 17th November 1914 was also to vacate the second sale held on the 16th November 1916 when he became the purchaser. We are of opinion that the contention of the appellant that the plaintiff by his purchase acquired a good title to the putni and that such title was in no wise affected by the cancellation of the first sale, is well-founded and must prevail.
5. It is plain that at the time when the second sale took place on the 16th November 1916, the putni was in arrears. At that time it had been already held by the Trial Court, subject, no doubt, to the ultimate result of the litigation, that the first sale was bad in law. The position at that moment was that the title of the Lahiris as holders of the putni stood revived, but it was still the subject-matter of a litigation, and it was conceivable that Singha might ultimately succeed. At that moment, as the putni was in arrear, either the Lahiris who had been held to be still the owners of the putni or Singha who claimed to be the purchaser at a valid sale, should have paid rent to the Zemindar. As no rent was paid, the tenure became a putni in default, and the Maharaja thereupon became entitled under the Regulation to have the putni sold by the summary procedure prescribed therein. This position, in our opinion, is incontestable. The proceedings which are taken under the Putni Regulation by the Zemindar for the recovery of his dues are proceedings taken, not personally against the putnidar, but against the tenure which represents the security for the rent. No doubt the Zemindar in this case mentioned the name of Singha as the putnidar, and it may be conceded that the notice consequently gave the name of a person whose title as putnidar ultimately failed. But that did not nullify the sale which took place. We shall assume for the moment that the Lahiris might have instituted a suit for cancellation of the second sale on the ground that there had been irregularities in the procedure followed by the Zemindar. We need not speculate what the result of such a suit might have been: but such a suit was never instituted, and, as apparently the time for the institution of such suit and even the time to urge the objection by way of defence to the present suit has expired, the title of the plaintiff as purchaser of the putni at the sale of the 16th November 1916 is no longer open to challenge. The validity of that sale was not dependent upon the continuance of the first sale. Nor did the second sale require to be confirmed, Ramsona Choudhurani v. Nabakumar Sinha (Sonamala Chowdhurani) 10 Ind. Cas. 90 : 13 C.L.J. 404 : 16 C.W.N. 805. From this it follows that as the plaintiff acquired a good title on the 16th November 1916 and as that title was not invalidated by the subsequent cancellation of the prior sale, he has been and still is the putnidar. He cannot consequently claim a refund of the purchase money from the Zemindar or of the rent which he paid on the 14th May 1917.
6. But our attention has been drawn to an observation in the case of Bejoy Chand Mahatap Maharaj Adhiraj of Burdwan v. Mritunjoy Ghose (Mohini Mohan Ghose) 60 Ind. Cas. 182 : 24 C.W.N. 785 : 47 C. 782, where it was said that on cancellation of the first sale the second sale also was vacated. We are not prepared to accept that view as consistent with the provisions of the Regulation. If that view were adopted, the result would follow that when a sale has been held under the Putni Regulation, during the whole of the period which may be taken up by a litigation to contest the validity of the sale, the authority of the Zemindar to proceed under the Putni Regulation for recovery of arrears of subsequent periods by summary procedure would be completely paralyzed. There is no provision in the Regulation which justifies such a conclusion and we are not aware of any judicial decision where it has been maintained.
7. The result is that this appeal is allowed and the suit dismissed with costs in all the Courts as against the first defendant, the Maharaja of Burdwan.
8. The suit will, however, be remanded to the Court of first instance to be tried out as a suit for recovery of possession of the putni by the plaintiff against the Lahiris. The investigation will be made on the footing that it has been finally held by this Court that the plaintiff acquired a good title to the putnji on the 16th November 1916 and that such title was not affected by the cancellation of the prior putni sale and was in full operation on the date of the institution of this suit.
9. We remit the case to the Court of first instance, so that the Lahiris, who are not represented in this Court, may have an opportunity of putting forward any defense which may be available to them, subject, however, to the decision which we have already given.
10. I agree.