1. This is an appeal by defendants Nos. 5 and 9 against a decision of the Subordinate Judge of Chittagong modifying a decision of the Munsif. The plaintiff sued alleging that the land mentioned in the plaint was a non occupancy holding belonging to defendant No. 6 which he purchased at a sale in execution of a decree for arrears of rent, the purchase being dated the 7th of April 1915. The Munsif decreed the suit and allowed khas possession. There was an appeal preferred against the Munsif's decision by defendants Nos. 5, 9, 19, 20 and 21. The learned Subordinate Judge held that defendants NOS. 9, 19, 20 and 21 had protected interests but that defendant No. 5 had no protected interest. So far as defendant No. 9 is concerned the only question that arises is with regard to the form of the decree. What the learned Subordinate Judge in the lower Appellate Court held was that, so far as defendant No. 9 was concerned, no decree for that possession was to be made in respect of the plots which this defendant claimed in the written statement. Now, the plots which he claimed in his written statement are seven in number 146, 156, 1437,1422/ 1468, 11884/4481, 149 and 1487 and the only one of these dags which is mentioned in the decree, so far as defendant No. 9 is concerned, is dog No. 1487, the other dags being omitted. It seems to us that this must, having regard to the decision of the learned Subordinate Judge have been a mistake.
2. A cross-objection has been preferred as against defendant No. 9 but this has not been pressed before us. Accordingly, so far as defendant No. 9 is concerned the appeal must succeed and the decree will be so far as he is concerned that the plaintiff will not be entitled to khas possession of any of the plots mentioned in his written statement, the numbers of which we have already given.
3. The plaintiff also preferred a cross-objection against defendants Nos. 19, 20 and 21. This cross-objection clearly cannot lie as against these persons and must be dismissed without costs as defendants Nos. 19 and 20 do not appear and the minor heirs of defendant No. 21, represented by the Deputy Registrar of this Court, are the only persons before us.
4. We now tome to the real substance of the appeal, namely, the appeal of defendant No. 5. On his behalf three points have been urged before us. First, it is said that the Subordinate Judge is wrong in holding that the land which, both in the Settlement Khatian and in the plaint, was described as 'non-occupancy' had become an occupancy holding and that, assuming he was wrong in so holding, there could be no sale of a non-occupancy holding in execution of a rent-decree. The second point urged is that the defendant No. 6, through whom the plaintiff claims, did not by virtue of his purchase get the entire holding, it being urged that as the heirs of Sadak Ali who was one of the recorded tenants in 1906 were not brought on the record after Sadak Ali's death their interest was not bound by the decree. The third point urged is that the defendant No. 5 had a protested interest.
5. So far as the third point is concerned this has not been pressed before us in view of the finding of fast contained in the judgment of the Subordinate Judge.
6. So far as the 1st point is concerned it is said that the Subordinate Judge has based his finding merely upon an assumption. What he says is this--the Survey operation in Chittagong commenced in the year 1892 or 1893; that inasmuch as in the finally published Record of Rights the raiyats are recorded as non occupancy raiyat they must by the year 1905, when the lands were sold to defendant No. 3, have acquired occupancy rights. Certainly the mere fast that you find in the finally published Record of Rights in 1898 a name recorded does not necessarily mean that the same persons as were recorded in in 1893 were on the land in 1892 or 1893 or 1894, which is the critical year. But as the Munsif has pointed out the sale in 1103 was acted upon as vesting a valid title in defendant No. 6 (through whom the plaintiff claims) and the tenants raised no objection at the time of the sale in 1906. We think, therefore, that taking into consideration all these matters it was possible to arrive at the conclusion that those who were non-occupancy raiyats had by lapse of time obtained occupancy rights and that the learned Subordinate Judge was right in holding as he did, that the raiyats had occupancy rights in the land. This being so the question as to whether a non-occupancy holding can be brought to sale in execution of a rent-decree does not arise for our decision in the present case.
7. So far as the second point is concerned, it does not seem to us that this has been satisfactorily disposed of by the judgment of the lower Appellate Court. The learned Vakil for the appellant, defendant No. 5, quite rightly says that it is not sufficient for the learned Subordinate Judge to say that defendant No. 5 has not established his title, It was for the plaintiff in proceedings of this nature to establish his title to the land and if he has failed to do so the failure of defendant No. 5 to establish his title cannot affect the position. Now, it is clear that Sadak Ali was a recorded tenant in 1906 and also prior to that year. It is clear that he died before the auction-purchase of defendant No. 6. It is also clear that his heirs were not made parties in the execution proceedings as they ought to have been and this being so it seems to us that Sadak Ali's heirs were not bound by the sale in 1906 and a fortiori they were not bound by the sale to the plaintiff in 1915. The learned Subordinate Judge says that the Suit No. 584 of 1912 was not a litigation between the parties, therefore, the decision of that suit is not binding upon the parties to the present litigation. Now, that is quite true, but the certified copy of the judgment which was produced shows that the facts were as we have stated. This being so, the interest of Sadak Ali's heirs was not affected by the sale in 1906 or by the subsequent purchase in 1915 by the plaintiff. Defendant No. 5 claims to be the purchaser from heirs of Sadak Ali, accordingly he is entitled to such rights as Sadak Ali's heirs possessed at the date of the sale to defendant No. 5.
8. In the result so far as defendant No. 5 is concerned this appeal must succeed, and we reverse that portion of the judgment of the Subordinate Judge and of the Munsif which affects his interest and the case is sent back to the Court of first instance in order that the Munsif may hold an enquiry to ascertain what portion of the land in suit belonged to the heirs of Sadak Ali and the plaintiff's suit must fail against defendant No. 5 in respect of the land so found on the enquiry.
9. It is stated to as that the dags whose numbers appear in the judgment and which We have held belong to defendant No. 9 are held by him and defendant No. 8 his brother jointly. Nothing contained in the judgment must be deemed to throw any doubt on the interest of defendant No. 8 in those dags.
10. The appellants will be entitled to their costs in all Courts from the plaintiff-respondent. The suit as against defendant No. 5 must stand dismissed.