1. This is an appeal on behalf of the plaintiff in an action in ejectment. The subject-matter of the litigation is an occupancy holding which was purchased by the third defendant on the 30th January 1885. It has been found that the purchase, though made in the name of the third defendant, was for the benefit of his father. Consequently, upon the death of the latter, the third defendant and his brother, the fourth defendant, along with the other heirs of their father, became jointly interested in the tenancy. It appears that the first two defendants held a decree for money against the fourth defendant and in execution thereof attached the tenancy. The wife of the fourth defendant preferred a claim on the allegation that the property belonged to her father-in-law and had been transferred to her by way of gift. This was supported by the third defendant. But the claim was overruled. She then instituted a suit for declaration of her title and was unsuccessful. The decree was thereupon executed and the right, title and interest of the fourth defendant has been purchased by the first two defendants who, it has been found, obtained possession of the land. The third defendant thereupon preferred a claim under Section 335 of the Code of 1882 which proved infructuous, and a subsequent suit by him for declaration of title was equally unsuccessful. He then preferred an objection in execution proceedings under Section 244, Civil Procedure Code. But there also his efforts were fruitless. Thereupon, on the 17th July 1907, he went to the landlord and executed in his favour a deed of surrender in respect of the portion of the land purchased by the first two defendants at the execution sale. The plaintiff landlord now sues to recover possession on the basis of this surrender, and the question in controversy is, whether the plaintiff is entitled to eject the first two defendants. On his behalf, reliance has. been placed upon the provisions of Section 86 of the Bengal Tenancy Act and upon the cases of Tamiz-ud-din Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 11 C.L.J. 16 : 14 C.W.N. 229 and Ananda Mohan Roy Chowdhury v. Guru Dayal Saha 7 Ind. Cas. 19. It has been broadly contended that as the third defendant was the registered tenant, it was open to him to surrender a part of the holding in favour of the landlord and thus prejudice the title and possession of the first two defendants. In our opinion, this contention cannot prevail. The learned Judge has found that this surrender was collusive. As we understand his decision, his finding is that this surrender was made by the third defendant with the express object of destroying the right of the first two defendants. Now, it cannot be disputed that the effect of the purchase of a part of the holding by the first two defendants was not to operate as forfeiture of the tenancy. In support of this proposition, reference may be made to the leading case of Kabil Sardar v. Chunder Nath Nag Chowdhury 20 C. 590, as also to the decisions in Chandra Mohun v. Biresswar 1 C.W.N. 158; Durga Prosad v. Doula Ghazee 1 C.W.N. 160; Gozaffur v. Dablish 1 C.W.N. 162 and Jogendra Nath v. Tincowri 10 C.L.J. 147 : 3 Ind. Cas. 205 : 6 M.L.T. 190 As was pointed out by Mr. Justice Banerjee in the case of Peary Mohun Mandal v. Radhika Mohun Hazra 8 C.W.N. 315 the effect of his purchase is to constitute the purchaser a joint tenant of the holding along with the tenants whose right, title and interest have not been sold. The. landlord is entitled to look for payment of rent to his registered tenants and to bring the holding to sale in execution of the decree obtained against them. But he is not entitled to treat the purchaser as a trespasser and sue him in ejectment. In fact this position is not seriously disputed on behalf of the appellants, and they base their title to re-enter on surrender. The question, therefore, arises whether this surrender, which has been found to be collusive, because made with the express object of defeating the title of the first two defendants, can be accepted as a good foundation for the claim. In our opinion, it cannot be so accepted. The cases of Tamizuddi v. Khoda Newaz 5 Ind. Cas. 116 : 11 C.L.J. 16 : 14 C.W.N. 229 and Ananda v. Guru Dayal 7 Ind. Cas. 19, upon which reliance is placed on behalf of the plaintiff, are plainly distinguishable, and so we need not examine whether they were correctly decided. It is obvious from an examination of the judgment that no question of fraud or collusion arose in those cases.
2. The result is that the decree made by the learned Judge must be affirmed and this appeal dismissed with costs.