Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the Subordinate Judge, Burdwan, in which he gave judgment for the plaintiff, and the defendants Nos. 1 and 2 whom I may call the Ghose defendants have appealed.
2. Now, it appears that in 1886 the Mookerjees who held under one Amir Ali entered into an agreement with an individual whom I shall call Pal, by which a subordinate tenure was created, and it appears that this tenure was of the character of a permanent under-tenure. It was in respect of sixty bighas, but apparently prior to 1889 a man called Gobardhan had got into occupation of 2 1/2 bighas, part of the sixty bighas, and he was paying rent to the first and second defendants, the Ghoses, and in 1889 Pal brought an action against Gobardhan and the first two defendants, the Ghoses, for the purpose of recovering possession of the 21/2 bighas. He failed in that action and from that time Gobardhan or some other occupant has been in possession of the 2 1/2 bighas, and Gobardhan or the other occupant has been paying rent to the Ghoses down to the institution of the present suit.
3. Now, a suit for rent was brought by the landlord against the Mookerjees in 1902, and a decree was, obtained in that suit. The plaintiff purchased the land in pursuance of that decree and in order to obtain possession of the land free from incumbrances he gave notice or caused notice to be given to Pal or his representatives--I am not sure whether he was still alive--for the purpose of putting an end to the incumbrance which was the agreement of tenancy created between the Mukerjees and Pal. But the Ghoses say in this case that they too were the holders of an incumbrance within the meaning of Section 167 of the Bengal Tenancy Act, and, therefore, they were entitled to notice, and that is the question in this case, namely, whether the Ghoses were in the position of holders of such an incumbrance as entitled them to notice under Section 167. I am of opinion that they were.
4. It appears that the tenancy was of the nature, as I have already said, of a permanent tenure which was capable of assignment either in whole or in part, and, therefore, if Pal had assigned his interest in the tenure in respect of the 2 1/2 bighas to the Ghoses, in my judgment the Ghoses would clearly have been in the position of incumbrancers to whom notice would have had to be given under Section 167, if the plaintiff desired to get possession of the land free from incumbrances. There was no actual conveyance in this case, but it has been held, and there is no dispute about it, that at all events ever since 1889 the Ghoses have been in possession of this 2 1/2 bighas by means of their tenants who were in fact occupying the 2 1/2 bighas and paying rent to the Ghoses and, therefore, as against Pal they have, by reason of their possession as against him, obtained title, just as much an effective title as if Pal had in fact conveyed his interest in the 2 1/2 bighas to the Ghoses, and for that reason I am of opinion that the Ghoses were holders of an incumbrance and consequently it was necessary for the plaintiff, if he desired to get possession, of the property free from incumbrances, to give notice not only to Pal which in fact he did, but also to the Ghoses which in fact he did not.
5. The result, therefore, is that the judgment of the Subordinate Judge was wrong, because he held that it was not necessary for the plaintiff to give notice to the Ghoses, whereas in my judgment he was entitled to such notice.
6. The appeal is, therefore, allowed and the suit dismissed with costs in all the Courts.
7. We do not intend to decide anything by this judgment which would prevent the plaintiff from recovering rent from the Ghoses in a proper proceeding. We do not think we can deal with that matter in this case.
Asutosh Mookerjee, J.
8. I agree that the decree of the Subordinate Judge cannot be supported. The facts material for the determination of the question of law raised before us lie in a narrow compass and may be briefly recited. Under one Chongdar as taluqdar the Mookerjees held a mokarari tenure. In 1886, the Mookerjees created a permanent under-tenure in favour of Pal. In 1889, the Ghoses took possession of 2 1/2 bighas of land included in the tenancy of Pal under the Mookerjees. This adverse possession of the Ghoses against Pal continued for the statutory period and in 1901, by operation of Section 28 of the Indian Limitation Act, the Ghoses acquired a good title to this 2 1/2 bighas of land as against Pal. In 1902, Chongdar brought a suit for arrears of rent against the Mookerjees and obtained a decree. At the sale held in execution of that decree on the 22nd January 1903, the plaintiff purchased the mokarari tenancy of the Mookerjees under Chongdar. He then took proceedings under Section 167 of the Bengal Tenancy Act to annul the incumbrance on the property, that is, the tenancy created in 1886 by the Mookerjees in favour of Pal. The plaintiff, it is conceded, served a notice under Section 167 on Pal and the question in controversy is, whether the notice so served affects the Ghoses.
9. On behalf of the plaintiff-respondent it has been argued that he completely fulfilled the requirements of Section 167 when he served notice upon Pal and that he was under no obligation to take notice of the right, if any, which by operation of law might have been acquired by the Ghoses against Pal. In support of this view, reliance has been placed on the decisions in Womesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15; Krishna Gobind Dhur v. Hari Churn Dhur 9 C. 367 : 12 C.L.R. 19; Sheo Sohye Roy v. Luchmeshur Singh 10 C. 577; Sharat Sundari Dabia v. Bhobo Pershad Khan 13 C. 101; Gunga Kumar Mitter v. Asutosh Gossami 23 C. 863; Thamman Pande v. Maharaja of Vizianagram 29 A. 593 : A.W.N. (1907) 185 : 4 A.L.J. 726 which formulate the doctrine that adverse possession against, a tenant is ordinarily not operative as adverse possession against the landlord during the continuance of the lease. This proposition is obviously of no avail to the respondent. The question in controversy is, not whether the possession of the Ghoses was adverse to the Mookerjees, but whether the Ghoses have acquired by operation of law the status of incumbrancers within the meaning of Section 167 of the Bengal Tenancy Act. The appellants contend, that this question should be answered in the affirmative, because they are persons in whom the incumbrance, that is, the sub-tenancy created by the Mookerjees in favour of Pal in 1886, has, as to a portion thereof, become vested. In fact, after the lapse of the statutory period, the position of the Ghoses became that of grantees of 2 1/2 bighas from Pal. Consequently the notice served on Pal alone is inoperative so far as the Ghoses are concerned and has not in any way affected the interest acquired by them in the sub-tenancy.
10. It may be pointed out that the transfer of a share of a permanent tenure or under tenure or of a raiyati holding at a fixed rate of rent is valid under Sections 11, 17, and 18 of the Bengal Tenancy Act, although, under Section 88, the transferee of the share is not entitled to claim a sub-division of the tenure or holding as against the landlord. The Ghoses here do not claim a sub-division of the tenancy as against the plaintiff, all that they assert is that they have acquired an interest in the tenancy created by the Mookerjees in favour of Pal, that they have thus become 'incumbrancers' and that they are consequently entitled to notice under Section 167. This contention is clearly well founded on principle and must prevail.
11. Reference has been made in the course of the argument to the decision in Gokal Bagdi v. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C.L.J. 136 and Anadulla v. Munseb Ali 14 Ind. Cas. 349 : 16 C.L.J. 539 : 16 C.W.N. 831 which recognise the principle that the term 'incumbrance' used in Sections 159 and 161 of the Bengal Tenancy Act includes a statutory title acquired by a trespasser by adverse possession of the land of a defaulting tenant. This doctrine had no application to the circumstances of the present case, because the Ghoses claimed title and possession, not against the Mookerjees, but against Pal. The true view is that when a person has, by adverse possession against a sub-tenant, acquired a statutory title to a portion of the lands comprised in the sub-tenancy, he has an interest in the sub-tenancy, so that when on a sale of the superior tenancy for arrears of rent the purchaser seeks to annul the sub-tenancy as an incumbrance', such person stands in the position of an 'incumbrancer' and is entitled to notice under Section 167. In my opinion, this appeal must be allowed and the suit dismissed with costs in all the Courts.