1. The judgment of the lower appellate Court in this case is not as satisfactory or full as it ought to have been. In the first place while writing the judgment, the learned Subordinate Judge used the word plaintiff when he meant the defendant No. 1. This, however, has been treated as a clerical error and corrected as such. It has not been argued on the basis of this mistake that the learned Subordinate Judge was writing his judgment upon some other case and not upon the case before him as the facts of this case do not coincide with the statements of facts in the judgment. The case has, however, been argued on the basis of its being a clerical mistake only and in that view of the case it is to be seen whether there are any grounds for this second appeal.
2. The defendant No. 1 created a mourasi lease in favour of one Braja Mohan. Braja Mohan created a der-mourasi in favour of the plaintiffs. In execution of a decree for arrears of rent the defendant No. 1 brought to sale the mourasi tenure of Braja Mohan and herself purchased the same in October 1898. The sale was confirmed in November 1899. It is in July 1900 that she had a notice under Section 167 of the Bengal Tenancy Act served upon two of the three der-mourasidars. Finding, however, that one of the der-mourasidars had been left out she made a second application on the 23rd of August 1901 under Section 167 of the Bengal Tenancy Act. In consequence of these proceedings the der-mourasidars were dispossessed by the defendant No. 1 and the new tenants with whom she is supposed to have settled this land. The plaintiffs, therefore, brought this suit for the recovery of their land on the basis of their der-mourasi title granted by Braja Mohan. The plea of the defendant No. 1 was that she had in due course annulled the incumbrance of the der-mourasi tenure under the Bengal Tenancy Act and the plaintiffs were not entitled to a decree.
3. The first Court found that the evidence of the service of these notices was not reliable, that the first notice was defective by reason of its not having been directed to the plaintiff No. 7 and that the second notice was out of time on all considerations.
4. The second Court, with regard to the first notice, does not clearly find that its service has not been proved, but it does clearly find, with regard to the second notice that it was not served and it accordingly dismissed the appeal of the defendant No. 1.
5. The defendant No. 1 appeals and it is contended on her behalf that, first notice if it was good against two was good against all; secondly that at least it was good against the two upon whom it had been served and as it must be taken upon the finding to have been served the suit ought to have been decreed only with regard to the share of the plaintiff No. 7 and it is further contended that the lower appellate Court was wrong in holding the second notice out of time in that there is no finding that the defendant No. 1 was aware of him before the period of limitation under Section 167. The fourth point taken is that the judgment is not in accordance with law.
6. I will first dispose of the 4th point. I think although the judgment is not satisfactory it does succinctly set out the facts and it contains the findings which upon the view of the law taken by the lower appellate Court are sufficient to dispose of the case.
7. With regard to the first and second points, Section 167 of the Bengal Tenancy Act provides that an application to the Collector should be to serve notice on the encumbrancer. This must on general principles mean on the whole body of the encumbrancers and unless this is done I do not think there will be a sufficient compliance with the requirements of law. It has been held in Delaney v. Rahamat Ali 32 C. 710 that if the notice is not served within time upon any of several encumbrancers jointly interested in the encumbrance the notice is bad in respect of the others also. I think I am bound by that judgment and following it I hold that the first two grounds urged on behalf of the appellant fail, that is to say, I hold that the first notice not being against the plaintiff No. 7 was not a good notice and no encumbrance would stand annulled by reason of its service.
8. As regards the third ground that the second notice with regard to the plaintiff No. 7 was in time. The question depends upon who is to prove the knowledge of the party making an application under Section 167 with regard to the encumbrance, that is, was it for the plaintiff No. 7 to show that the defendant No. 1 had notice of his encumbrance before one year from the time of the application or whether the defendant No. 1 was to prove that she had no notice except within one year from the time of the application. There does not seem to be very much difficulty in the determination of this question, for if we apply the test as to who is to fail if no evidence is given we at once arrive at the conclusion that the plaintiffs were entitled to succeed unless the defendant No. 1 made out the special title under which she claimed to have annulled the rights of the plaintiffs. The next thing to be seen is whether there is in the judgment of the lower Courts any finding with regard to the knowledge of the defendant No. 1. I find that the learned Munsif considered the point and held that the knowledge of the defendant No. 1's husband was her knowledge and that she must have had that knowledge sometime in 1305 when certain receipts were granted by her husband. The learned Subordinate Judge refers to the deposition of the defendant No. 1's husband and holds that the defendant No. 1 had notice of the encumbrance from Jaistha 1307. In an ordinary case notice to an ordinary am muktear may not be a notice to his principal. But the circumstances of this case point out a state of things in which the notice to the am muktear, who is the husband as well as am muktear on behalf of the defendant No. 1 and who is the person conducting the proceedings on her behalf, ought to be taken as sufficient notice to the defendant No. 1. As the learned Subordinate Judge has treated the notice to the defendant No. 1's husband, under the circumstances of the case as a notice to the defendant No. 1, I do not think that he has done what he was not entitled to do under law. He has relied upon the circumstances and also upon the fact that the defendant No. 1 has not chosen to say when she had this knowledge. Another test that may be applied is this: that the onus of proof lies upon the party who had special means of knowledge, when the defendant No. 1 had the knowledge of the existence of the encumbrance of the plaintiff No. 7 is a matter specially within her knowledge and if she does not prove this she does so at her own peril. I think, therefore, the findings arrived at by the lower appellate Court are conclusive. Although it is doubtful whether the lower appellate Court has found whether the first notice was properly served or not it is not necessary in the view of the law that I have taken to have any finding on this point, because if the view of the law that I have taken is correct then service or no service of the notice is bad. The appeal is, therefore, dismissed with costs.