1. This appeal arises out of a suit for ejectment. One Jainnddi held a kalmi raiyati under defendant No. 3; on the death of Jainuddi his son Munsur Ali held the ruiyati. In 1912 defendant No. 3 sued Munsur Ali for rent of the holding and in execution of the decree granted to him he caused the holding to be sold and bought it himself. After his purchase he settled a portion of it with the plaintiffs who are his sons, and they have brought the suit to eject the defendants Nos. 1 and 2.
2. The defence is that Munsur Ali sold a part of the jote, the part in dispute, to Asrab Ali in 1899, that Asrab Ali sold it to Takub Ali in 1904 and Yakub Ali to Fazar Ali defendant No. 1 in 1808, and Fazar Ali to Abdul Kabir defendant No. 2 in 1908 and that Fazar Ali has taken a barga lease of it from Abdul Kabir.
3. The learned Subordinate Judge found that the lease to the plaintiffs was made bona fide, that the raiyati was one at a fixed rate of rent, that defendant No. 3 did not recognize the transfer of the other defendants, that landlord's fees ought to have been paid but were not paid by Asrab Ali, Yakub Ali and Fazar Ali, that the transfers were in consequence invalid, that the payment of landlord's fees on the occasion of the last transfer did not confer any title upon Abdul Kabir, and that as the holding was sold in execution of a rent-decree obtained against the registered tenant the plaintiffs have acquired a good title by settlement from defendant No. 3. On these findings he decreed the plaintiffs' appeal and suit.
4. Defendants Nos. 1 and 2 appeal, and on their behalf it is argued that the learned Subordinate Judge has overlooked the provisions of Act I (B.C.) of 1903 in holding that the successive transfers were invalid, and that as against Munsur Ali the defendant Abdul has acquired a good title by adverse possession and this constitutes an incumbrance which can be annulled only under the provisions of Section 167 of the Tenancy Act.
5. If the whole holding had been sold the first contention would be correct, but the 3rd Section of the Act mentioned lays down that the provisions of Section 88 are not affected. The transfer was of part of a holding, and constituted a division which the landlord was not bound to recognise, and, the lower Appellate Court finds, did not recognise.
6. The second argument, however, seems to be sound. Munsur Ali parted with his right and possession in 1899 or fifteen years before the date of suit, and since then the portion of th6 holding has been in the possession of Asrab Ali and the subsequent purchasers down to Abdul Kabir. As against Munsur Ali the latter has title by adverse possession, and this I think comes within the meaning of the word incumbrance as defined by Section 161 of the Act. This view was taken in the case of Gokul Bagdi v. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C.L.J. 136, where the facts are very similar.
7. On this ground the appeal must succeed.
8. The defendants' appeal is allowed and the plaintiffs' suit dismissed with costs in all Courts.
9. I agree.