Mullick, J.:— There were three under tenures, namely, Osat Taluk Naba Kishore, Howla Chandra Sekhar and Howla Haranath, the proprietors of which were the Guhas. In 1290 B.S the Guhas mortgaged to one Raj Kumar half of the Osat Taluk and half of the Howla Chandra Sekhar. By a kobala, dated the 15th Chait 1295 B.S, they then sold their proprietary interest to the Plaintiff and on the same date executed a darmirash kabuliyat in her favour. On the 18th Magh 1296 B.S, being unable to pay the dues on the mortgage of 1290, they executed a kistbandi in favour of Raj Kumar. Raj Kumar sued upon his mortgage in 13th Ealgoon 1303, and obtained a decree on the 10th November, 1897, corresponding to 24th Kartick 1304 B.S In 1908 the Plaintiff sued the Guhas for arrears of rent in respect of the Dar Mirash and after realising some money in execution eventually brought the tenure to sale, on the 15th February, 1905, and purchased it herself. It appears, however, that the sale in execution of Raj Kumar's mortgage decree was held on the 20th January, 1909, and that, at this sale, the Barisal Loan Company purchased one of the properties, namely, the half of Howla Chandra Sekhar.

In Suit No. 268, out of which arises the Second Appeal No. 1460 of 1914, the Plain-1 tiff sues the Defendant Ratan Khan for khas possession after annulment of incumbrances which are alleged to consist of a Nim Osat Howla and an Osat Howla created by the Dar Mirashdais the Guhas and described in khewats 56 and 58 of the recent Cadestral Survey Record.

In Suit No. 269, out of which arises the Second Appeal No. 1667 of 1914, the same prayer is directed against the Defendant Aswini Kumar in respect of two undertenures—Osat Howla Mathura Nath and Osat Howla Chandra Kumar as described in khewats 61 and 73 in the Survey Record.

In Suit No. 270, out of which arises the Second Appeal No. 1666 of 1914, the Defendant is Amiruddin and under-tenure is a Nim Osat Howla as described in khewat 57.

I shall take up these cases separately.

Suits Nos. 268, 269.

In these suits, the Court below has found that owing to the non-service of notices the Plaintiff is only entitled to rent. In second appeal, it is now urged that the Plaintiff has no title and that the whole suit shall be dismissed, because the kobala of 1295 by the Guhas in favour of the Plaintiff was not duly registered within the meaning of the Registration Act, inasmuch as no part of the property was situated within the Sub-Registry of Barisal where it was registered. Now the kobala alleges that one of the properties, namely, the Osat Taluk Naba Kishore, is situated within the jurisdiction of the Sub-Registry of Barisal. The view’ that the Courts below appeared to have taken is this that although there was some evidence to show that, at the time of the Thakbust survey, no part of the lakhraj Osat was situated within the Sub-Registry of Barisal, yet from other circumstances it is proved that a different state of affairs existed at the time of registration. In my opinion, this is a finding of fact which cannot be reversed in a second appeal. Further, there is a clear finding in the judgment of the learned Sub-ordinate Judge to the effect that the Plaintiff has been in possession for 12 years since the execution of the kobala. It is urged that there is no finding that there has been 12 years' continuous possession. In my opinion, taking the judgment of the learned Sub-ordinate Judge together with the judgment of the learned Munsif which it affirms, there can be no doubt that it has been found by both the Courts that the Plaintiff had been in continuous possession since her purchase. The defects, therefore, if any, with regard to registration, have been cured. I also notice that there was an admission in the kobala executed by the Defendants in favour of the Dar Mirash ijardar of the Guhas, of the title of the Plaintiff by purchase. It is submitted before me that admission was made inadvertently. It is, however, an item of evidence and the Courts below were entitled to draw an inference from it. The title of the Plaintiff, therefore, being found, the decree of the learned Sub-ordinate Judge is correct. Appeals Nos. 1460 and 1667 of 1914 will therefore be dismissed. As nobody appears for the Respondent, there will be order for costs.

Suit No. 270.

In this suit the only point in addition to that relating to registration already dealt with above is whether at the time of her purchase at the auction sale the Plaintiff had the 16 annas interest in the property. It is established that the Loan Company had purchased the half share of the Howla Chandra Sekhar at the mortgage sale on the 20th January, 1909. Therefore, on the 15th February, 1909, when the Plaintiff brought the Dar Mirash tenures to sale, the Plaintiff was not the 16 annas landlord in respect of those properties. Therefore, according to the ruling of the Privy Council in Forbes v. Moharaj Bahadur Singh the Plaintiff was not a purchaser in execution of a rent decree. This ruling of the Privy Council, as I understand it, overrules the decision of the Full Bench in Kshetrapal Singh Roy v. Kritarthamoyi Dasi upon which both the lower Courts have relied. The decree of the learned Sub-ordinate Judge will be set aside and the Plaintiff will get a declaration of her title in respect of her share. The appeal is, therefore, decreed with costs, although the Respondents do not appear.

[Against the judgment relating only to Appeal No. 1666 of 1914 the Plaintiff preferred this appeal under sec. 15 of the Letters Patent.]

Mr. A.K Fazlul Hug (with Babu Kali Prosonno Piplai) for the Appellant.— The only point for consideration in this appeal is whether the sale in execution of the rent decree passed the property free of incumbrance. It is admitted that we had the entire sixteen annas interest as landlord at the time of bringing the suit at the date of the decree, and at the time of application for execution sale. So this comes exactly under the Full Bench decision in Kshetrapal Singh v. Kritarthamoyi Dasi. Before the Full Bench decision there was some difference of opinion on this point. Refers to Hem Chunder Bhunjo v. Mon Mohini Dassi and Chhatrapat Singh v. Gopichand Bothra. But the Full Bench decision set this at rest. So the only question that I have to answer is whether the Full Bench decision has been by implication, as held by Mullick, J., overruled by the Privy Council decision in Forbes v. Moharaj Bahadur Singh. But the facts of the Privy Council case were different, there the landlord was not the sole landlord even at the date of the decree. So the Privy Council case does not affect our case.

[Mookerjee, J.:— But the Privy Council case went very much beyond the facts of that particular case. It considered the general principle. There are certain observations which are very much against you.]

But those observations, properly construed, do not really go against me. For what the Privy Council lays down is this, that the landlord must have the entire landlord's interest at the time of bringing the tenure to sale. What is “the time of bringing the tenure to sale”? Not the actual time when the sale is held by the auctioneer. There are four stages in these cases: first, institution of the suit; second, decree; third, application for execution sale; and fourth, actual sale. Here, in this case, I had the entire landlords' interest up to the third stage. To apply for the execution sale was all that I could do to bring the tenure to sale. After my application it was the Court's duty to complete the mechanical portion of the execution sale. So really I had the landlords' interest at the time of bringing the tenure to sale.

Babu Abinash Chandra Guha for the Respondents.—The test applied by the Privy Council in the decision in Forbes v. Moharaj Bahadur Singh is that the decree-holder must be the sole landlord at the date of the institution of the suit, must continue up to the date of sale. The keynote of the Privy Council decision is that where the relationship of landlord and tenant exists, these provisions apply. To come under the dictum of the Privy Council decision the landlord must have the entire sixteen annas interest not only at the time of institution of suit, at the time of decree, and at the time of application for execution, but down to the time of the actual sale. In this case the landlord, not being the landlord within the meaning of sec. 188 of the Bengal Tenancy Act, the sale was not a rent sale and hence the under-tenure would not pass. The Privy Council decision virtually overruled the Full Bench decision in Kshetrapal Singh v. Kritarthamoyi Dasi and restored the decision in Hem Chunder Bhunjo v. Mon Mohini Dassi. The Full Bench case is further distinguishable, that was a claim case and these questions did not arise there.

The Judgment of the Court was as follows:—

Mookerjee, J.:— This is an appeal, under cl. 15 of the Letters Patent, from the judgment of Mr. Justice Mullick in a suit for recovery of possession of land on declaration of title. The case for the Plaintiff is that, on the 19th February, 1908, she obtained a decree for rent against an under-tenure-holder, that she executed the decree in accordance with the special procedure prescribed in Chap. XIV of the Bengal Tenancy Act, and that on the 15th February, 1909, she purchased the defaulting under-tenure at the execution sale. When she proceeded to take possession of the property through Court on the 17th July, 1909, the present Defendants declined to deliver up possession to her on the allegation that they were in possession as holders of a sub-ordinate under-tenure lawfully created by the defaulter. The Plaintiff thereupon proceeded to annul the alleged incumbrance by service of notice in accordance with the provisions of sec. 167 of the Bengal Tenancy Act, and, subsequently, on the 7th July, 1911, instituted the present suit for ejectment of the Defendants. The Defendants pleaded that inasmuch as a half share of the interest of the Plaintiff as superior landlord had been sold in execution of a mortgage decree against her on the 20th January, 1909, and as, consequently, she had ceased to be the sole landlord on that date, the sale held on the 15th February, 1909 operated, not as a sale under the Bengal Tenancy Act, but only as a sale of the right, title and interest of the judgment-debtor under the Code of Civil Procedure. The trial Court overruled this contention and decreed the suit. On appeal to the Sub-ordinate Judge, the decree of the Court of first instance was affirmed. On second appeal to this Court, Mr. Justice Mullick has held that the contention of the Defendants must prevail on the authority of the decision of the Judicial Committee in Forbes v. Moharaj Bahadur Singh and in this view, he has dismissed the suit. The question of the effect of the execution sale held on the 15th February, 1909, is the sole point for consideration on the present appeal.

The history of judicial opinion on the question of the effect of the cessation, partial or entire, of the interest of a landlord on his right to enforce realisation of arrears of rent by sale of the tenancy under the special procedure prescribed in the Bengal Tenancy Act, may be briefly reviewed. In Hem Chunder Bhunjo v. Mon Mohini Dassi the interest of the landlord ceased after he had obtained a decree for rent in respect of a saleable under-tenure. It was ruled by Okinealy and Ameer Ali, JJ., that he could not thereafter bring the tenure itself to sale in execution of the decree in conformity with the special provisions of the Bengal Tenancy Act. In Chhatrapat Singh v. Gopichand Bothra the landlord lost his interest after the institution of the suit for arrears of rent and before the decree was made in his favour. It was ruled by Macpherson and Ameer Ali, JJ., that the decree so made had all the characteristics of a rent decree under the Bengal Tenancy Act. In Sreemant Ray v. Makadeo Mahata the landlord lost his interest before the institution of the suit for arrears of rent, by reason of the expiry of the term of his own lease. It was ruled by Haring-ton and Brett, JJ., that he could, in execution of his decree for rent, sell only the right, title and interest of the tenant as existing at the time of the sale. In this state of the authorities, the matter came before a Full Bench of this Court in the case of Kshetrapal Singh v. Kritarthamoyi Dasi. In that case, the landlord had parted with her interest after she had obtained a decree for arrears of rent and before she applied to execute the decree. It was ruled that the decree was capable of execution as a rent decree at her instance. Sir Francis Maclean, C.J, held that if at the time when the rent suit is instituted and the rent decree made, the Plaintiff is still the landlord, the decree is liable to be executed at his instance as a rent decree, notwithstanding that he has parted with his interest as landlord before he applies for execution. It may be observed that the Full Bench dissented from the decision in Hem Chunder v. Mon Mohini which was indistinguishable on the facts. We come finally to the decision of the Judicial Committee in Forbes v. Moharaj Bahadur Singh. There, the landlord lost his interest before the institution of the suit for arrears of rent and was consequently not the landlord at the time when the decree was obtained or the application was made for its execution. A Division Bench of this Court, Rampini and Sharfuddin, JJ., [Moharaj Bahadur Singh v. Forbes(6)] held that the decree operated as a decree for rent. The Court treated the decisions in Hem Chunder v. Mon Mohini and Sreemant v. Mahadeo as overruled by the Full Bench in Kshetrapal v. Kritarthamoyi, although the facts of the case before the Full Bench were different from those of the case then before the Court in a material particular, namely, while in the one case the landlord had lost his interest before the institution of the suit for rent, in the other he lost his interest after he had obtained his decree for rent. The case was then taken up on appeal to the Judicial Committee, and the decision of this Court was reversed. In the elaborate judgment delivered by Mr. Ameer Ali who, it will be observed, was a party to the conflicting decisions in Hem Chunder v. Mon Mohini and Chhatrapat v. Gopichand the provisions of the Bengal Tenancy Act relating to rent were reviewed; but the Judicial Committee did not in express terms overrule the decision of the Full Bench in Kshetrapal v. Kritarthamoyi and, proceeded, on the other hand, to observe that the High Court had fallen into an error in drawing an inference of law in support of their conclusion from a decision which was obviously based on facts different from those with which they had to deal. The facts of the case before us are substantially different from those of the cases already mentioned, and, consequently, we are not called upon to consider the question which formed the subject-matter of reference to a Special Bench in Profulla v. Nasibunnessa(7), namely, whether the decision of the Full Bench has been in essence overruled by the decision of the Judicial Committee. As we have observed, we are no concluded here by any of the decisions just analysed, and we are not prepared to apply to this case isolated dicta from the judgment of the Judicial Committee pronounced in a case where the facts were in essential particulars different from those of the litigation before us; otherwise there would be manifest abuse of judicial precedents, which has been condemned by Lord Halsbury in Quinn v. Leatham(8) and by Lord Haldane in Kreglinger v. New Patagonia Meat and Gold Storage Co.(9). The view thus emphasised had been recognised many years earlier by Marshall, C.J, in Brooke v. Marbury(10) where he observed that the language of a judicial pronouncement must be understood as spoken in reference to the facts under consideration and limited in meaning by those facts [United States v. Burr(11)].

What, then, is the position of the parties, when tested from the point of view of principle? The Plaintiff was the sole landlord at the date of the institution of the suit for arrears of rent, at the date of the decree, and at the time when the application for execution was made. The application was made in accordance with the special procedure prescribed in Chap. XIV of the Bengal Tenancy Act for execution of decrees for arrears of rent. Proceedings were thereupon taken under sec. 163 for simultaneous issue of writ of attachment and proclamation of sale; and it cannot be disputed that this was done in strict conformity with the position of the decree-holder at the time. Does it, then, make any difference that the decree-holder lost a part of his interest as landlord before the sale was actually held by the Court? In our opinion, the answer must be in the negative. The legal effect of the sale should depend upon the status of the decree-holder at the time the proceedings for sale were taken by the Court at her instance. She was competent to ask the Court to bring the defaulting under-tenure to sale and to adopt for that purpose the measures prescribed by the statute. Those measures were duly adopted, and the property was brought to sale in conformity therewith. The Respondents have not been able to invoke the aid of any intelligible principle by which the legal effect of the sale can under such circumstances be made to depend, not upon the true character of the proceedings in execution duly taken but the relative situation of the parties at the moment of the sale. We are of opinion that in a case of this description, where the decree-holder continued to be the sole landlord at the date of the application for execution of the decree, and, in his character as landlord decree-holder, took the necessary steps for sale of the under-tenure in conformity with the statutory provisions, the effect of the execution sale is to pass the under-tenure to the purchaser, even though the decree-holder has lost his interest as landlords before the actual sale.

The result is that this appeal must be allowed and the decree of the Sub-ordinate Judge restored with costs of both hearings in this Court.

Beachgroft, J.:— I agree.

J.N.R

Appeal decreed with costs.