1. The present appeal arises out of a suit for declaration of title to, and recovery of possession of, certain lands as Lakhiraj Bajeapti lands, The first Court gave the plaintiffs a decree, but the lower appellate Court has reversed the judgment of the Court of First Instance and has dismissed the plaintiff's suit.
2. The case for the plaintiffs was that the Lakhiraj Bajeapti tenure, a portion of which is the subject of the present suit, was sold in 1900 in execution of a simple money decree, obtained by the defendant No. 9 against the defendant No. 1 and the father of the defendant No. 2, and was purchased by the defendant No. 9 himself. The defendant No. 9 afterwards sold the land in suit, which is a portion of the aforesaid tenure, to the plaintiffs in October 1901. The defendants Nos. 4 to 8, who are the 8 annas co-sharers landlords of the estate, in which the Lakhiraj tenure is situated, brought a suit for arrears of rent against the defendants Nos. 1 and 2 and, on the 28th January 1902, put the tenure to sale. The defendant No purchased it at that sale and was put in possession. The defendant No. 3 is the contesting defendant in the present suit. The plaintiffs appear to have contested the purchase of the defendant No. 3 on the grounds, first, that they had obtained their title from a previous purchaser in execution of a Civil Court decree and, secondly, that the purchase by the defendant No. 3 was collusive and fraudulent. At the trial, however, the plaintiffs withdrew the allegations of fraud and collusion, and the main question, on which the parties went to trial, was whether the title of the plaintiffs based on their purchase from the purchaser at the execution sale in December 1900 should prevail against the title of the defendant No. 3, acquired by his purchase at the sale for rent held on the 28th January 1902. The Court of First Instance held that the plaintiffs' title should prevail. The lower appellate Court, relying on a judgment of this Court in the case of Bichitranund Roy v. Behary Lal Pundit 5 C.L.J. 89, hold that, as the present plaintiffs had failed, in compliance with Section 27 of Act X of 1859, to have their names registered in the landlord's sherista, after their purchase and as, in consequence, the tenure had been sold by the landlords as the tenure of the original tenants on the 28th January 1902 and was purchased by the defendant No. 3, the plaintiffs had no locus standi to maintain the present suit.
3. In support of this appeal, it has been contended that the learned Judge of the lower appellate Court erred in law in relying on the case to which. I have referred and in holding that the decision in that case was binding as to law and facts in the present case. That case was one brought by the defendant No. 9 against the defendant No. 3 to recover possession originally of the whole of the Bajeapti lakhiraj tenure. After the suit was instituted, the claim, so far as it related to the land in suit in the present case, was withdrawn on an objection being taken by the defendant and the suit proceeded as against the rest of the tenure. In that case, it was held that, as the present defendant No. 9 had failed, in compliance with the provisions of Section 27 of Act X of 1859, to have his name registered in the sherista of the landlords, he had no locus standi as a tenant, which would entitle him to bring a suit against the person who had purchased the interests of the registered tenants at a sale held in execution of a decree for rent. The learned pleader for the appellants has, in support of this appeal, contended that the view taken by the Lower Appellate Court is wrong and has further suggested that the decision of this Court in the case of Bichitranund Roy v. Behary Lal Pundit 5 C.L.J. 89, above alluded to, is in conflict with, the decisions of this Court in certain other cases. The first case on which he relies as showing the conflict is the case of Afraz Molla v. Kulsumunnessa Bibi 4 C.L.J. 68. That, however, is a case dealing with a sale under the provisions of Act VIII of 1885, whereas the present case is one dealing with the effect of a sale in execution of a decree obtained by a co-sharer landlord under the provisions of Act X of 1859. The next case relied on is the case of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya 12 C. 24. That, too, is a case under the provisions of Act VIII (B.C.) of 1869. The next case relied on is the case of Doorgadhur Biswas v. Huro Mohinee Debi 13 C.W.N. 270, decided in 1888. That, too, is a case under Act VIII (B.C.) of 1869. The learned Vakil for the appellants also relies on the case of Nund Lall Roy v. Gooroo Charn Base 15 W.R., 6, referred to by the Munsiff in his judgment. That was a case of a sale in execution of a decree for rent under the provisions of Act X of 1859, but it differs from the present case in that the decree-holder who was a sharer in an undivided taluq, instead of bringing to sale the whole of the tenure, only brought to sale a portion of the tenure, and it was held that the sale had no further effect than any other sale in which, the right of the judgment-debtor is sold. The next case relied on is the case of Grish Chunder Mitter v. Sheikh Jholwo 17 W.R. 352. That, however, was not a case on all fours with the present case, for that was a suit brought for rent. The question raised in that case was whether an ijaradar of a certain fractional share of an estate, who had himself brought the tenure to sale for the arrears due to him for his share of the rent and had purchased it, had a better title than the person who had purchased the tenure in satisfaction of a Civil. Court decree, and it was held, in that case, that he had a superior title. Reliance is placed on a sentence in that judgment to the effect that what is sold under the provisions of Sections 108 to 110 of Act X of 1859 would not be the tenure but the rights and interests of the holder of it as if in an ordinary Civil Court execution. That case, however, was not one similar to the present case in which the suit is brought by the purchaser at a sale in execution of a money decree against the purchaser at a sale in execution of a rent decree. The cases relied on do not appear to me to be conclusive in support of the contention advanced on behalf of the appellants that there is a conflict between the decision of this Court in the case Bichitranund Roy v. Behary Lal Pundit 5 C.L.J. 89 and the decisions in the other cases to which reference has been made. There is, on the other hand, the decision of this Court, in the case of Patit Shahu v. Hari Mahanti 27 C. 789, in which the same view was taken as that adopted in the case of Bichitranund Roy v. Behary Lal Pundit 5 C.L.J. 89, and which followed the decision in the case of Sham Chand Koondoo v. Brojonath Pal Chowdhury 21 W.R., 94.
4. The contention on behalf of the appellants is that the provisions of Section 108 of Act X of 1859; which deal with sales, in execution of decrees for their share of the rent, obtained by sharers in undivided estates, are practically the same as the provisions of Section 64 of Act VIII of 1869 and it is contended that the decisions with reference to the latter section equally apply to cases falling under Section 108 of Act X of 1859. It does not seem to me, however, that the two sections can be taken to be similar in respect to the important point, namely, the effect of a sale of the tenure. Section 108 provides that, where a sharer in a joint and undivided estate has failed, in execution of a decree for his share of the rent, to recover the amount from the moveable property of the debtor, he may put up to sale the under-tenure itself. It also provides that, in such a case, such under-tenure, if it is of the nature described in Section 105, that is to say, if it is a transferable tenure, may be brought to sale in execution of a decree in the same manner as any other immoveable property may be sold, in execution of a decree for money, under the provisions of the two next following sections. The two next following sections merely provide the procedure to be adopted; and Section 110 provides that, if the property to a saleable under-tenure, it should be sold under the provisions of the law, for the time being in force, applicable to the sale of such under-tenures for demands other than those for arrears of rent due in respect thereof. There is nothing, so far as I can find, in those sections to indicate that what was intended by the law was that the tenure itself should not be sold but that only the right, title and interest of the judgment-debtor in the tenure should be sold. Section 64 of Act VIII (B.C.) of 1869 differs in its concluding passage from Section 108 of Act X of 1859, and may be taken to support the view which has been adopted by this Court that what is sold under that provision of that Act is only the right, title and interest of the debtor. The provisions of Act X of 1859 seem to me to indicate that it was intended by the Legislature that, if a sharer of a joint undivided estate is unable to recover his share of the rent from the moveable property of the judgment-debtor, he shall be entitled to sell the tenure itself in the same way as any other immoveable property.
5. Section 27 of Act X of 1859 distinctly provides that all persons, purchasing a permanent transferable interest in land, intermediate between the zemindar and the cultivator, shall register their interest. It also provides the remedy by which the transferee of any such, interest can obtain registration. The contention, advanced on behalf of the appellants in the present case, would have the effect, in my opinion, of rendering the provisions of that section nugatory, if it be held that a transferee, who had failed to comply with the provisions of that section, was yet entitled to claim priority in title over a purchaser in execution of a decree for rent, obtained by a co-sharer landlord against the registered tenant. The purchase in this case was made in December 1900 and no steps were taken by the purchaser who was the vendor of the present plaintiffs to have his rights acknowledged before the date when the tenure was sold on the 28th January 1902. The tenure was then sold under the provisions of Section 108 of Act X of 1859 as the tenure belonging to the registered tenants and it was purchased bona fide for value by the present defendant No. 3 and he obtained possession. It appears that the defendant No. 9, after he had failed in his suit against the defendant No. 3, took out the surplus proceeds duo on the portion of the tenure, in respect of which he had brought his suit, and there can be no doubt that, if in the present case, it were to be held that the plaintiffs have a good title as against the defendant No. 3 to recover possession, of the remaining portion of the land, a confusion would follow and the defendant No. 3 would suffer considerable hardship and loss. In my opinion, the view taken by the Lower Appellate Court in this case is correct. There is a distinct provision in the law that the transferee of a tenure shall have his name registered as tenant in the landlord's sherista, and if he fails to comply with the provisions of the law, he or a person claiming through him cannot be allowed in a subsequent suit to contest, the title of a bona fide purchaser for value of the same tenure, which has been put up to sale in execution of a decree for rent, obtained by the landlord against the registered tenant. 1 am, therefore, of opinion that, on all the grounds taken, the appeal should fail. I see no reason for holding that what passes at a sale under Section 108 of Act X of 1859 is not the tenure itself. It seems to me that it was the intention of the Legislature that the tenure itself should pass and, such being the case and the plaintiffs having failed to have their title registered, I think the Lower Appellate Court is right in the view which it has taken that the plaintiffs in this suit had no locus standi to dispute the title of the defendant No 3. The case, on which the learned pleader has relied in support of the view that only the right, title and interest of the tenant would pass at a sale under Section 108 of Act X of 1859, distinctly provides that whatever may be the effect of the sale, the landlord has a right to proceed for the recovery of rent against the registered tenant. In this case, the present plaintiffs and their vendor appear to have failed to take the steps necessary to secure what they had purchased at the sale, in execution of the Civil Court decree, from being sold in satisfaction of the decree for rent in the suit brought against the registered tenants.
6. The result, therefore, is that the judgment and decree of the lower appellate Court are affirmed and the appeal is dismissed with costs.