Dawson Miller, C.J:— (after stating the facts set out above, proceeded as follows:)— In argument before us it was no longer denied on behalf of the appellants that the decree obtained by the 7-annas proprietor was a rent decree. In fact the form of the plaint in that suit makes it quite clear that it complied with the provisions of the Statute. But it was contended that the sale in execution thereof conferred upon the landlord purchaser no more than the right, title and interest of the judgment-debtor because no notice was served upon the co-sharer landlord as required by section 158B, sub-section (2) of the Act. It was also contended on behalf of the appellants that the failure to take proper proceedings to annul the incumbrance gave priority to that incumbrance over the rights of the landlord even assuming that he purchased under a rent decree. On the question of res judicata it was contended that the point was not substantially in issue in the previous, proceedings in 1915, that these proceedings were not between the same parties or their representatives and that as no objection was taken at the sale to the plaintiffs in 1917 objection could not be taken now on the principle laid down in the case of Mungul Pershad Dichit v. Grija Kant Lahiri and that until the sale was set aside it could not be questioned.
It is unnecessary, in my opinion, to determine, the question of res judicata as even if we should decide this in favour of the appellants we think they must fail upon other points in the case. Nor indeed could we finally determine this question without having before us more detailed information as to the proceedings under Order XXI, rule 90, than we have at present.
With regard to the second point I have already stated that it is conceded that the decree was a rent decree. Nor do I consider that in the circumstances the failure to serve notice under section 158B involved the consequence that the purchaser at such a sale was in the position of an ordinary purchaser under a money decree. The obligation to serve notice upon the co-sharer landlord is enacted to protect his interest. In such a case the person upon whom it is required to serve notice may, at his option; waive the necessity for such notice. It is found by the District Judge in this case that he did waive the right to such notice and recognised the purchase of the 7-annas landlord, accepting from him his share of the rent. The question was considered in the case of Rajani Kanta Ghose v. Sheikh Rahman Gazi, where it was held that a co-sharer landlord might waive his right to notice under the section in question notwithstanding the decision of the Judicial Committee in Raghunath Das v. Sundar Das Khetri. In my opinion the case of Rajani Kanta Chose v. Sheikh Rahman Gazi was rightly decided.
It remains to consider the third point, namely, the effect of the failure to annul the mortgage incumbrance under the provisions of section 167 of the Bengal Tenancy Act. Admittedly the provisions of that section were not complied with but, although the notice required under the section is framed in language which applies generally to purchasers at sales in execution of rent decrees, and incumbrances can only be annulled in the manner prescribed in the section, different considerations arise in a case like the present where the landlord is himself the purchaser and the incumbrancer is the mortgagee of a nontransferable occupancy holding. The section must be given effect to in the light of the other sections and of the right of the landlord to refuse to recognise a tenant not of his own choosing. Regarded merely as a purchaser he would be barred by the existing incumbrances unless they were annulled. But regarded as a landlord he has the right to refuse to recognise a transferee of the original occupier as his tenant. The plaintiffs are none the less transferees though they acquired under a mortgage lien granted by the original tenants. By section 65 the rent forms a first charge on the holding and takes priority over the mortgage lien. A landlord holding a decree for rent can sell the property and purchase it himself. If he is a co-sharer proprietor, as in this case, he acquires the peculiar interest conferred by sub-section (2) of section 22 and may hold the land on paying to his co-proprietors their share of rent, and may transfer his rights so acquired to a third person who thereupon becomes a raiyat. What then is to happen if the holding is subject to a mortgage granted by the defaulting tenant. Can the mortgagee who has obtained a decree on his mortgage and purchased the property in execution claim possession from the landlord or the raiyat settled on the land by the landlord? Clearly not without the landlord's consent. He has no right to hold the land as a raiyat against the will of the landlord and his incumbrance, although never formally annulled and although still subsisting for what it is worth, is a barren right against the landlord when he seeks to enforce it by taking possession of the property. It is therefore of no consequence that the landlord did not seek to annul the mortgage, for the mortgagee could not step into the shoes of the original tenants and acquire a raiyati interest against the landlord's will. To hold otherwise would be, in effect, to allow the tenant of a nontransferable holding to transfer in a roundabout way to a stranger, without the landlord's consent, by executing a mortgage in favour of the stranger and allowing the holding to be sold in execution of a mortgage decree. Such a sale can give him no right against the landlord without the latter's consent or entitle him to oust the landlord or the tenant claiming under him. It must be remembered that the plaintiffs in this case are claiming actual possession as purchasers of the holding. They are not seeking to redeem the landlord by payment of the rent charge under section 73 of the Transfer of Property Act, or to share in the surplus proceeds of the rent sale as second mortgagees. Such remedies may have been open to them in proceedings properly framed for that purpose. But the present suit is not one of such a nature. Even had proceedings been taken under section 73, I apprehend that when the plaintiffs came to take possession they would still have been in a difficulty unless the landlord consented to accept them as tenants. The view just expressed is in accordance with the decision of this Court in Surat Lal Chowdhery v. Lala Murlidhar. The truth would appear to be that the transferee of a non-transferable occupancy holding, whether he takes by kabala from the original tenant or whether he acquires the property by purchase under a mortgage decree, has a very precarious right, for he cannot force himself upon the landlord as a tenant without the latter's consent.
For these reasons I think that this appeal must be dismissed with costs.
Adami, J.:— I agree.
S.A.K
Appeal dismissed.