1. This is an appeal by the defendants, and it arises out of a suit for declaration of title and recovery of possession with regard to two blocks of land, one of which has got an area of 5 bighas and other an area of 15 bighas. The Purnea Banking Corporation Ltd. are the plaintiffs, and they claim to have purchased the Sch. A land in execution of a decree against defendant 2 on 2-2-1943 and obtained delivery of possession on 26-5-1943. The plaintiffs are the proprietors of tauzi No. 290 under which the lands in suit lie, and according to the case put forward by them the Sch. A land was formerly the raiyati land of the father of defendant 1. In execution of a decree against the father of defendant 1, defendant 2 had purchased the land in or about the year 1937, and the plaintiffs as the 16 annas landlords had to institute Rent Suit No. 110 of 1941 against defendant 2 for the rent of the said holding of 5 bighas. In execution case No. 974 of 1942 the plaintiffs purchased the said holding on 2-2-1943, and the sale was confirmed on 5-3-1943. It was alleged that after the delivery of possession in their favour the defendants began to create troubles and ultimately dispossessed the plaintiffs not only from the 5 bighas which is the Sch. A land but also from 15 bighas of the plaintiffs' khas land which lies adjacent south of the Sch. A land. The defendants were further said to have cut a sesum tree lying on the suit land, and Rs. 100/- was claimed by the plaintiffs as price of that sesum tree. With regard to Sch. B land there was an alternative prayer by the plaintiffs to the effect that if they be found to be net entitled to a decree for khas possession with regard to the same, then a decree for assessment of rent be passed with regard to it. Defendant 1 alone contested the suit, and his defence substantially was that there was no valid sale with regard to any portion of the land; that his father had purchased the entire suit land which constituted one holding with the rental of Rs. 10/- per year from one Mr. E.L Chapman, the executor of the estate of Mrs. H.D Chapman in the year 1914, that though the purchase was only in the name of the father of this defendant his other brothers had also interest in the property, and that the story of possession and dispossession as put forward by the plaintiffs was absolutely incorrect. According to the allegations made by defendant 1 it was in the year 1887 that Mrs. H.D Chapman had acquired this property.
2. The Court of first instance held that the 5 bighas constituted a separate holding and that the plaintiffs had acquired a valid title with regard to the same by their auction purchase. A decree for recovery of possession was accordingly passed by the learned Subordinate Judge with regard to the Sch. A land. The claim for possession with regard to Sch. B land was dismissed by the learned Subordinate Judge, but he assessed its rent at the rate of Rs. 6/4/- per bigha. Rs. 50/- was allowed to the plaintiffs as compensation for the sesum tree which was found to have been cut by defendant 1 from the 5 bighas of land after the delivery of possession to the plaintiffs.
3. As against this decree defendant 1 preferred an appeal to the District Judge of Purnea, and the plaintiff's preferred a cross-objection which was directed against the refusal of the learned Subordinate Judge to pass a decree for possession with regard to Sch. B land and also against his order refusing costs to them.
4. The learned District Judge held in disagreement with the learned Subordinate Judge that the Sch. A and the Sch. B lands together constituted one holding at a rental of Rs. 10/- but he agreed with the learned Subordinate Judge that there had been valid sale with regard to the 5 bighas of land. He also confirmed the finding of the learned Subordinate Judge that the plaintiffs were entitled to Rs. 50/- as the compensation for the sesum tree. Because of his finding that the two frocks constituted one holding he came to the conclusion that the plaintiffs were not entitled 10 a decree for assessment of rent with regard to the Sch. B land. He refused to interfere with the order of the learned Subordinate Judge disallowing costs.
5. The defendants being the appellants before this Court, their contention is that the Court below was wrong in passing a decree for 5 bighas of land. It has further been contended on their behalf that the Courts below should have held that only one-fourth share in the land had passed to the plaintiffs by the auction sale. A cross-objection has been preferred by the plaintiffs-respondents, and it is directed against the decision of the learned District Judge with regard to the Sch. B land. The contention of the plaintiffs-respondenls is that their claim for khas possession with regard to the Sch. B land should have been decreed and that in any event the order of the learned Subordinate Judge directing assessment of rent with regard to the Sch. B land should not have been set aside.
6. The first sale with regard to the property mentioned in Sch. A of the plaint took place in the year 1937, and it was a sale in execution of a decree against the father of defendant 1. Defendant 2 was the purchaser at that sale, and after his purchase the plaintiffs had to institute the rent suit No. 110 of 1941 for the rent of the 5 bighas of land. The plaintiffs ??? the said 5 bighas on 2-2-1943 and obtained delivery of possession on 5-3-1043. The present suit was instituted on 20-12-1945. The lea; nod District Judge has negatived the case of defendant 1 who only was the contesting defendant in the trial Court that the processes were suppressed and that defendant 1 had no knowledge of the suit or the execution proceeding.
7. The finding on the question of possession is, however, in favour of the defendant, end the learned District Judge has held that as the suit is within 12 years from the date of the delivery of possession, the plaintiffs would be entitled to recover possession of the land even thought the possession that had been delivered to that it was only a symbolical possession. The view taken by the learned District Judge is correct, and in — ‘Ramanand v. Bindhachal. AIR 1943 Pat 416 (A) it was held that where in execution of a ??? possession is delivered of immovable property to the person entitled to session thereof, and such a person bungs a suit for recovery of actual possession, the symbolical possession will be deemed equivalent to actual possession as against the judgment-debtor or his representatives, and the suit will be deemed to have been brought in time ill it has been brought within 12 years from the date of the symbolical possession. This position off law was not and could not be disputed before me. But the counsel for the appellants pointed out that as the brothers of defendant 1 had also interest in this property, their interest could not pass by the sale at which defendant 2 purchased this property, inasmuch as they were no parties to the suit or the execution proceeding. The case of defendant 1 is that his father along with his three brothers, Krishnachand, Brijchancl and Radha Krishna Chand had purchased this property from Mr. E.L Chapman, the-executor of the estate of Mrs. H.D Chapman in the year 1914 and that consequently the said three brothers had also interest in the property which had not been affected by any of the sales. It is true that if the property was the property of all the four brothers, namely Gopaichand, Krishnachand, Brijchand and Radhakrishna Chand, the interest of Gopalehand's brothers could not pass by the sale unless it is found that Gopaichand alone was the recorded tenant under the landlord.
8. The learned District Judge has held on the basis of the rent receipts that Gopaichand alone was the recorded tenant, and if the recorded tenant alone had been sued, then the interest of the other co-sharers in the land must also be deemed to have passed by the auction sale. The first suit had been instituted only against the father of defendant 1, and if he alone was the recorded tenant, then the decree and the sale held in execution of that decree would be binding on his co-sharers as well. The whole question, therefore, is whether the other co-sharer had held out defendant 1 as their representative in the transactions with the landlords. If the had held out defendant 1 to represent them in the matter of the tenancy, they cannot complain if a decree for rent was obtained only against defendant 1, and if the entire tenancy was brought to sale in execution of that decree. According to the findings, defendant 1 alone was the recorded tenant, and therefore in execution of the decree against him the entire holding could be sold. This plea should also be rejected on the ground, that defendants 3 to 5, that is the other alleged co-sharers, had been impleaded as party defendants in the suit be an order of the Court dated 14-9-1946, and though the summonses had been served of them, they never came forward to contest the suit. Mr. Mitter has rightly submitted that the contention loses all its force, because the alleged other co-sharers never thought it fit to contest the suit. By the sale held in execution of the decree against the father of defendant 1, the entire lend sold, therefore, passed fo defendant 2, and if defendant 2 was the purchaser of the entire land, the plaintiffs who have purchased in execution of a decree against defendent 2 will also be deemed to have acquired the interest of all the co-sharers. If the first sale was a valid sale, the second sale also must be regarded as a valid sale, when the contention of the defendants regarding the sale being fraudulent has been altogether negatived.
9. It is not onen to me to go beyond the finding of the learned District Judge that the holding was really a holding consisting of the lands described in Schs. A and B of the plaint. The learned District Judge has found that the rental of this entire holding was Rs. 10/-, and consequently he has disallowed the claim for assessment of rent with regard to Sch. B land. If the amount of Rs. 10/- was the rent for the entire area consisting of the Sch. A and Sch. B lands, then the question of assessment of rent with regard to Sch. B land does not arise, and the learned District Judge was right in his view that in that circumstance there could only be an apportionment of the original rent of Rs. 10/-. But it has been urged by the learned Counsel for the appellants on the strength of certain decisions of this Court that it was not open to the plaintiffs to put to sale only a portion of the: holding.
10. The next question which arises, therefore, is whether it was open to the landlords to sell the Sch. A land only when, according to the findings, the Sch. A & the Sch. B lands constituted one holding. The decisions relied on by the learned Counsel are — ‘Ram Chandra v. Ram Ghulam' AIR 1938 Pat 305 (B) and ‘Ambika v. Laxmi*’, AIR 1948 Pat 223 (C). The former decision is by a Single Judge of this Court, but the latter decision is a Division Bench decision by Meredith and Manohar Lall, JJ. The authority of these decisions is now considerably weakened as was pointed out in a recent Division Bench decision of this Court — ‘Ramkali Kuer v. Ram Bujhawan*’, AIR 1952 Pat 42 (D). Unfortunately, this decision was not referred to by any of the learned Counsel before me, but, in my opinion, it is binding on me, and I respectfully agree with the view taken in it that in view of the decision of the Full Bench of this Court in — ‘Jeonandan Singh v. Janki Singh’, AIR 1938 Pat 306 (FB), it would be difficult to follow the decision in — ‘AIR 1948 Pat 223 (C)’. The Full Bench had held in — ‘Jeonandan Singh's case’ (E) that a suit for recovery of rent is also a suit to enforce the personal liability of the tenant to pay a certain sum of money to the landlord and that a decree may be made enforcing this liability where a decree cannot be made enforcing the charge under S. 65 of the Act. Their Lordships further observed that a money decree of this kind may properly be given in such a case as this, where owing to the existence of a dispute regarding the real area of the tenancy the landlord has in the description given in the plaint omitted to mention certain plots which formed part of the tenant's holding.
11. This is exactly the position here, inasmuch as while, according to the findings, the Sch. A land and the Sch. B land constituted one holding, the landlord had failed to mention the Sch. B land in the plaint, though he had claimed Rs. 10/- per year as the jama—a jama which was the rental of the entire holding. This Full Bench decision, therefore, is conclusive of the point raised before me. The only difficulty which arises is that in that case the decree that was passed against the father of defendant 1 will have to be regarded only as a money decree. But this difficulty is obviated because of two circumstances, the first being that so far as the landlord is concerned he knew nobody else to be the tenant except Gopalchand, the father of defendant 1, and the second is that the alleged other co-sharers though parties to this suit did not contest it. The learned District Judge has referred not only to the rent receipts but also to a document, Ex. 2, and to the sale-deed by which the father of defendant 1 had purchased the land from the executor of the estate of Mrs. Chapman. The document stood in the name of the father of defendant 1 alone, and the apparent state of things should be taken to be the real state of things. There is no presumption,” that a family, because it is joint, possesses joint property or any property, and if defendants 3 to 5 really claimed any interest in this property, it was necessary for them to show that the property had been acquired by all the brothers of the father of defendant 1 or that their joint family was possessed of some property with the income of which the property in question could have been acquired, or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, or by joint labour. The judgments of the two Courts below show that this point was never urged before them, and I have already said that defendants 3 to 5, though they were made defendants in the suit, did not choose to contest it.
12. There having been no contest on behalf of defendants 3 to 5, I do not think it is open to the appellants now to urge that though the document of sale stood in the name of the father of defendant 1 only, his other brothers had also interest in it. The point if it has to be decided in this litigation cannot be decided without remanding the suit, and in view of the fact that defendants 3 to 5, the alleged other co-sharers, did not at all contest the suit, a remand for the determination of the question would be improper and unjustified. The contention urged on behalf of the appellants, therefore, appear to me to be without any substance, and the appeal must fail.
13. The cross-objection cannot succeed when the finding is that there was one joint holding consisting of the Sch. A and the Sch. B lands. There is a clear finding of fact that the jama of Rs. 10/- was the jama of both the lands, and as such the question of assessment of rent with regard to the Sch. B land does not arise. The Sch. B land was never sold, and the finding is that they had been all along in the possession of the defendants. In the result, therefore, I would dismiss the appeal with costs. The cross-objection is also dismissed, but without costs.
A/G.M.J
14. Appeal and cross-objection dismissed.