1. This is an appeal by the defendant in a suit for rent. The land in dispute originally belonged to one Golak Sheikh. In execution of a decree for money obtained against him, one Kissen Singh purchased a portion of the holding on the 23rd March 1904. Thereupon the representative of the original tenant took sub-leases from the purchaser in respect of a portion only of the land acquired by him, under two leases dated the 14th and 19th February 1905. On the 7th July 1906, the plaintiff took a settlement from the superior landlord of the disputed land which constituted the occupancy holding of Golak Sheikh. He subsequently sued to eject Kissen Singh as a trespasser and obtained a decree against him on the 14th February 1908. When he attempted to execute this decree, he was opposed by the present defendant, the representative of the original tenant, who was still in occupation of the land. The result was a proceeding under rate 100 of Order XXI of the Civil Procedure Code, which terminated in favour of the objector on the 25th May 1909. This suit was instituted on the 20th September 1911 to enable the plaintiff to recover rent from the defendant as his under-raiyat. The defendant resists the claim on the ground that the plaintiff has acquired no valid title under his settlement from the superior landlord and that, in the events which have happened, the occupancy holding still belongs to him as the representative of the original tenant. The Court of first instance dismissed the suit. Upon appeal the Subordinate Judge has reversed that decision. On the present appeal the decree of the Subordinate Judge has been assailed on two grounds; namely, first, that the plaintiff has acquired no valid title under his settlement from the superior landlord; and secondly, that the suit is barred by limitation under Article 11 of the Schedule to the Indian Limitation Act.
2. As regards the first question, it is clear that the plaintiff cannot possibly succeed. The effect of the purchase, by Kissen Singh, of a portion of the occupancy holding of Golak Sheikh did not cause a forfeiture of the tenancy. This is settled by a long series of decisions of this Court Kabil Sardar v. Chunder Nath Nag Chowdhry 20 C. 590; Durga Prasad Sett v. Doula Gazee 1 C.W.N 160; Sheik Gozaffur Hossein v. E. Dablish 1 C.W.N. 162 and is now finally confirmed by a Full Bench in the case of Dayamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 42 C. 172 : C.L.J. 52 : 18. Notwithstanding the purchase of a portion of the holding by Kissen Singh, the tenancy, so far as the superior landlord was concerned, continued unaffected, and he was entitled to look for payment of rent to his recorded tenant. There was also no abandonment in fact, because the representative of the original tenant has continued in actual occupation of the land. This is proved conclusively by the circumstance that when the plaintiff endeavoured to execute the decree for ejectment against Kissen Singh, he was opposed and opposed successfully by such representative. It follows that as the original tenancy still continued, the landlord was not competent to create a valid occupancy holding in favour of the plaintiff by the settlement of the 7th July 1906. It has been ingeniously argued, however, that the defendant is estopped to question the title of the plaintiff. The argument is that the defendant, after he had, on the 14th and 19th February 1905 accepted leases from Kissen Singh, could not have contested the title of the latter; consequently he cannot question the title of the plaintiff. This argument is manifestly fallacious; for let it be conceded that the defendant could not have contested the title of Kissen Singh; but how does that avail the plaintiff? The plaintiff does not claim through Kissen Singh. He has, on the other hand, successfully sued Kissen Singh as a trespasser, he has obtained a decree for ejectment against him and has actually removed him from the land. He cannot now turn round and contend that the same estoppel which might have been operative against defendant in favour of Kissen Singh operates in his own favour, though he does not acknowledge the title of Kissen Singh. We are of opinion that the defendant was competent to question, as he has successfully assailed, the alleged title of the plaintiff under the settlement from the landlord. Consequently there is no relationship of landlord and tenant between the plaintiff and the defendant, and the claim for rent is bound to fail.
3. In this view, it is not necessary to discuss the second question, namely, whether the suit is barred under Article 11 of the Schedule to the Indian Limitation Act. But it may be observed that the title which the defendant sets up is that of an occupancy raiyat and the only title which the plaintiff claims is also that of an occupancy raiyat; consequently this must be deemed to have been the right set up in the proceeding under Rule 100 of Order XXI of the Code; and the present suit for cancellation of that order should have been brought within one year from its date; in this view, the suit is barred by limitation.
4. The true position is that if the plaintiff fails on the merits, His suit is also barred under Article 11 of the Schedule to the Limitation Act; if he succeeds on the merits, no question of limitation arises.
5. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs in all the Courts.
6. It is conceded that this judgment will govern the other appeal (Second Appeal No. 4140 of 1913), which is also allowed with costs.