1. The present appeal arises out of a suit brought by the plaintiffs appellants to recover possession of certain chur land after declaration of their title on the allegation that this land formed portion of a Howla, the whole of which they had purchased at an auction sale for arrears of rent brought against the registered tenants of the Howla. The plaintiffs are the proprietors of a 7 anna share of the taluq in which the Howla is situated and some of the defendants are the proprietors of the remaining 9 anna share of the taluq, while the other defendants are the proprietors of a neighbouring taluq. The defence set up by the defendants, who are the proprietors of the remaining 9 annas of the taluq, was that, by the purchase in execution of the decree for rent, the plaintiffs had not acquired a title to the whole of the holding and, therefore, they were not entitled to the whole of the land in suit; while the defendants who are the proprietors of the neighbouring taluq, alleged that a certain portion of the land in suit fell outside the plaintiffs' taluq and within their taluq. An enquiry seems to have been made by a Commissioner to ascertain whether the land in suit was included entirely within the taluq of which the plaintiffs are fractional proprietors or whether a portion of it fell outside the taluq and within the taluq of the defendants. After completing the enquiry, the Commissioner prepared a map in which he showed the land which fell within the taluq of the plaintiffs and also the land which fell outside. With reference to the land which fell outside, the lower Courts held that the plaintiffs' claim could not succeed and we have nothing to do with it in this appeal. We have only to deal with the land which was found, on measurement, to fall within the taluq of which the plaintiffs are the 7 anna fractional co-sharers and the main dispute in this Court has been between the plaintiffs, the 7 anna proprietors, and the defendants who are the 9 anna proprietors of the taluq. The points at issue between the parties in the lower Courts appear to have been, first, whether under the sale, at which the plaintiffs purchased, the whole of the Howla passed or only a portion of it; secondly, if only a portion of the Howla passed what was that portion and, thirdly, whether any portion of the claim was barred by the doctrine of res judicata. Now, it seems that the plaintiffs in this case are the 7 annas fractional co-sharers of the taluq and they brought a suit against three persons, Ram Narain Guha, Annada Sundary and Raj Chandra Thakurta, to recover from them their share of the rent due in respect of the Howla and obtained a decree against those three persons and, in execution of that decree, put up the Howla to sale and themselves purchased it. The defendants in the lower Courts contended that what passed under the sale in execution of the decree, which the plaintiffs obtained, was merely the share or right, title and interest of the three judgment-debtors in the Howla, and that the whole Howla did not pass; while, on behalf of the plaintiffs, it was argued that the whole Howla passed under the sale. The Court of first instance held that the whole Howla passed and that the case for the defendants that only a portion of it passed could not be accepted. That Court also held that in respect of no portion of, the land in suit was the claim barred by res judicata. On appeal, after the case had been remanded to the Court of first instance for further findings, the lower Appellate Court has come to a directly contrary decision to that of the Court of first instance. The learned District Judge has found that the whole tenure did not pass, that all that passed was the 4 anna share of Raj Chandra Thakurta, which was the only share which at the time of the sale Raj Chunder, Ram Narain Guha, and Annada Sundary, the three judgment-debtors, had in the Howla and that the share of the other persons who were interested in the Howla did not pass. He has also held that, in respect of certain lands which are included in the present claim and which formed the subject of suit No. 37 of 1882, the claim of the plaintiffs was barred by the doctrine of res judicata. The plaintiffs have, therefore, obtained a decree for a 4 anna share only of the land in suit as included in the Howla excluding the portion which formed the subject of the previous suit.
2. Against this judgment and decree, the plaintiffs have appealed and, in this Court the same contentions have been advanced as were advanced in the Court of first instance.
3. It has been found by the Lower Appellate Court-and with those findings we are unable to interfere in second appeal-that the Howla originally belonged to Kali Sanker and Banga Chandra, who were brothers, each having an 8 anna share in it. Kali Sanker had two sons, a natural son, Ram Narain and an adopted son, Golak. Golak married Mukta Keshi and Ram Narain married Rashmoni. Kali Sanker, during his life-time and during the life-time of his two sons, made a gift of the whole of his 8 anna share in the Howla to his two daughters-in-law, 6 annas being given to Rashmoni, the wife of his natural son, and 2 annas to Mukta Keshi, the wife of his adopted son. Banga's share devolved on his death upon his daughter Armada Sundary. Rashmoni had three sons of whom one predeceased her and, before her death, she executed a Will in favour of her sons giving her six anna share in the property to her two sons, Lalit and Sasi. After her death, Lalit and Sasi sold 2 annas out of their 6 annas in the Howla to the defendant No. 100, Guru Nath Gupta. Mukta Keshi sold the 2 annas which she had received by gift from Kali Sanker to Guru Nath and Annada Sundary also sold 4 annas out of her 8 annas to Guru Nath. Annada Sundary sold the remaining 4 annas belonging to her to Raj Chunder, who was one of the defendants in the suit brought for recovery of rent by the present plaintiffs. According to these findings, therefore, the Howla was divided in the following manner: 4 annas was the property of Lalit and Sasi, 8 annas was the property of Guru Nath and 4 annas was the property of Raj Chunder.
4. The Court of first instance disbelieved the genuineness and validity of the gift by Kali Sanker of his 8 anna share to his two daughters-in-law; but, on appeal, the finding of that court on this point has been set aside and the learned District Judge, for reasons given in his judgment, has come to the conclusion that the Heba was a genuine and bona fide transaction and that it created a good title in favour of Rashmoni and Mukta Keshi. With these findings, we are unable to interfere in Second appeal. We, therefore, hold that, so far as the Heba was concerned, at the time of the sale under which the plaintiffs claim title, it was divided amongst the various persons in the manner which we have stated.
5. The case for the plaintiffs has all along been and has been so argued before us that, though the Howla might possibly belong to the persons mentioned in the shares stated, still, when the plaintiffs, as landlords, brought a suit against Raj Chandra, Ram Narain and Annada Sundary, who were the only persons who had been registered as tenants of the Howla and obtained a decree and, in execution of that decree, sold up the whole holding, the whole holding must be held to have passed to the plaintiffs by purchase in execution of that decree. It has been contended that, whether those three persons were the sole tenants or not, they, for the purposes of this case, represented the whole interest in the Howla, because, they must be taken to have been the representatives of the other proprietors of the Howla, who were not registered as tenants. In support of this contention, the learned Pleaders for the appellants have relied on the cases of Jeo Lal Singh v. Gunga Pershad 10 C. 996 and Nitayi Behari Saha Paramanick v. Hari Govinda Saha (2). It is contended that, on the authority of those two decisions, we should hold that the learned District Judge erred in law in the view which he took that the three persons against whom the suit was brought did not represent the whole tenant interest in the holding. On behalf of the respondents the learned Counsel has relied on the decisions of this Court in the cases of Afraz Mollah v. Kulsumannessa Bibee 10 C.W.N. 176, Doorga Dhur Biswas v. Huro Mohinee Debi 13 C.W.N. 270; (1909) 1 I.C. 184, Matangini Chowdhurani v. Srinath Das 8 C.L.J. 552 and Jiban Krishna Roy v. Brojo Lal Sen, L.R., 30 I.A. 81; 30 C. 550. It is not necessary for us to deal at great length with these decisions but it is clear from the cases cited by the learned Counsel that the principle laid down by this Court with regard to a sale held in execution of a decree for rent obtained by a fractional co-sharer against certain persons as tenants is, that such a decree can only be executed as a money decree under the Code of Civil Procedure and that, at a sale in execution of that decree, what passes to the purchaser is the light, title and interest of the judgment-debtors and nothing more. In the case of Doorga Dhur Biswas v. Huro Mohinee Debi 13 C.W.N. 270; (1909) 1 I.C. 184, it has been distinctly laid down that, such a sale, even though a decree may be obtained against the registered tenants, passes only the right, title and interest of such registered tenants and not the interest of their unregistered co-sharers as well. The cases on which the learned pleader for the appellants relies appear to us to be clearly distinguishable from the present case and we are unable to agree that the Court of first instance was right in holding that the three persons, who were sued for rent as tenants in the holding, represented the whole body of tenants. In the case of Jeo Lal Singh v. Gunga Pershad 10 C. 996, the tenants were members of an undivided Mitakshara family and it was held that the person who was registered as the tenant being the Karta of that family might be taken to be the representative of the rest of the family and that a decree obtained against him in a suit for rent would bind the rest of the family on the ground that he represented them. The case of Nitayi Behari Saha Pramanick v. Hari Govinda Saha 26 C. 677, differs from the present case in that in that case the suit for rent was brought by the whole body of landlords and not, as in the present case, by the 7 anna fractional co-sharers and, further more, because the position of the defendants as representatives of the other tenants in the holding had, in other transactions, been asserted and acknowledged. In the present case, the suit, in which the decree was obtained, in execution of which decree the plaintiffs made their purchase, was brought by the proprietors of the 7 anna interest only and it has been found by the lower appellate Court that the persons against whom that decree was obtained were persons who had only a 4 anna interest in the holding. The District Judge has held that, in these circumstances, all that the plaintiffs are entitled to is a decree declaring their title to a 4 anna interest in the Howla and he has given them a decree to recover possession through tenants of a 4 anna share only of the land within that Howla. We are of opinion that the view taken by Lower Appellate Court is correct and that the contention advanced on behalf of the appellants that the entire Howla passed under the sale cannot be sustained. This finding covers the first two points which have been raised and we have to consider the remaining point which is as regards the question of res judicata.
6. It has been contended on behalf of the appellants that the Judge of the Lower Appellate Court owed in holding that, so far as the defendants Nos. 1 and 2 were concerned, the claim was barred by res judicata in respect of the land covered by Suit No. 37 of 1882, because those defendants in their written statements alleged that they were not properly represented as parties either in the suit or in the appeal and, therefore, no questions were finally decided in that suit as between them and the present appellants. We cannot accept this contention as sound. That suit was apparently brought by the plaintiffs and they made the defendants Nos. 1 and 2 parties defendants in the suit. Their claim as regards certain lands was decreed but, as regards other lands, the suit was dismissed, and, in appealing against that portion of the decree which dismissed a portion of their claim, the present appellants omitted to make the defendants Nos. 1 and 2 parties respondents. The result, therefore, was that the decree which, stood in their name dismissing the plaintiffs' suit in respect of certain lands became final. We think that the view which the learned Judge of the Lower Appellate Court has taken is quite correct and that the appellants have only themselves to blame if, so far as the land covered by Suit No. 37 of 1882 is concerned, their present claim is barred by the result of that suit. We can find no reason for differing from the finding of the learned District Judge on this point and this contention urged in support of the appeal must, therefore, fail.
7. The result, therefore, is that we affirm the judgment and decree of the Lower Appellate Court and dismiss this appeal with costs.