The case for the Plaintiffs has all along been and has been so argued before us that, though the hawla might possibly belong to the persons mentioned, in the shares stated, still, when, the Plaintiffs, as landlords, brought a suit against Raj Chandra, Ram Narain and Annoda Sundari who were the only persons who had been registered as tenants of the howla and obtained a decree and, in execution of that decree, sold up the whole holding, the whole holding must be held to have passed to the Plaintiffs by purchase in execution of that decree. It has been contended that, whether those three persons were the sole tenants or not, they, for the purpose of this case, represented the whole interest in the howla because they must be taken to have been the representatives of the other proprietors of the howla, who were not registered as tenants. In support of this contention the learned pleader for the Appellants has relied on the cases of Jeo Lal Singh v. Gunga Pershad and Nitayi Behati Saha Pramanik v. Hari Govinda Saha. It is contended that, on the authority of those two decisions, we should hold that the learned District Judge erred in law in the view which he took that the three persons against whom the suit was brought did not represent the whole tenant-interest in the holding. On behalf of the Respondents, the learned Counsel has relied on the decisions of this Court in the cases of Afraz Mollah v. Kulsumannessa Bibee, Doorgadhur Biswas v. Hum Mohinee Dabee, Matangini Chaudhmani v. Sreenath Das(5) and Jiban Krishna Roy v. Brojo Lal Sen(6). It is not necessary for us to deal at great length with these decisions but it is clear from the cases cited by the learned Counsel that the principle laid down by this Court with regard to a sale held in execution of a decree for rent obtained by a fractional co-sharer against certain persons as tenants is that such a decree can only be executed as a money-decree under the Code, of Civil Procedure and that under a sale in execution of that decree, what passes to the purchaser is the right, title and interest, of the judgment-debtors and nothing more. In the case of Doargadhur Biswas v. Hum Mohinee Dabee, it has been distinctly laid down that such a sale even though a decree may be obtained against the registered tenants, passes only the right, title and interest of such registered tenants and not the interest of their unregistered co-sharers as well. The cases on which the learned pleader for the Appellants relies appear to us to be clearly distinguishable from the present case and we are unable to agree that the Court of first instance was right in holding that the three persons who were sued for rent as tenants of the holding represented the whole body of tenants. In the case of Jeo Lal Singh v. Gunga Pershad, the tenants were members of an undivided Mitakshara family and it was held that the person who was registered as the tenant being the karta of that family might be taken to be the representative of the rest of the family and that a decree obtained against him in a suit for rent would bind the rest of the family on the ground that he represented them. The case of Nitayi Behari Saha Pramanik v. Hari Govinda Saha differs from the present case in that, in that case the suit for rent was brought by the whole body of landlords and not, as in the present case, by the 7 annas fractional co-sharers and furthermore, because the position of the Defendants as representatives of the other tenant in the holding, had in other transactions been asserted and acknowledged. In the present case the suit in which the decree was obtained in execution of which decree the Plaintiffs made their purchase was brought by the proprietors of the 7 annas interest only and it has been found by the lower Appellate Court that the persons against whom that decree was obtained were persons who had only a 4 anna interest in the holding. The District Judge has held that, in these circumstances, all that the Plaintiffs are entitled to is a decree declaring their title to a 4 anna interest in the howla and he has given them a decree to recover possession through tenants of a 4 anna share only of the land within that howla. We are of opinion that the view taken by the lower Appellate Court is correct and that the contention advanced on behalf of the Appellants that the entire howla passed under the sale cannot be sustained. This finding covers the first two points which have been raised and we have to consider the remaining point which is as regards the question of res judicata.
It has been contended on behalf of the Appellants that the Judge of the lower Appellate Court erred in holding that, so far as the Defendants Nos. 1 and 2 were concerned, the claim was barred by res judicata in respect of the land covered by Suit No. 37 of 1882, because those Defendants in their written statements alleged that they were not properly represented as parties either in the suit or in the appeal, and, therefore, no questions were finally decided in that suit as between them and the present Appellants. We cannot accept this contention as sound. That suit was apparently brought by the Plaintiffs and they made the Defendants Nos. 1 and 2 parties Defendants in the suit. Their claim as regards certain lands was decreed but, as regards other lands, the suit was dismissed and, in appealing, against that portion of the decree which dismissed a portion of their claim, the present Appellants omitted to make the Defendants Nos. 1 and 2 parties Respondents. The result, therefore, was that the decree which stood in their name dismissing the Plaintiff's suit in respect of certain lands became final. We think that the view which the learned Judge of the lower Appellate Court has taken is quite correct and that the Appellants have only themselves to blame if, so far as the lands covered by Suit No. 37 of 1882 is concerned, their present claim is barred by the result of that suit. We can find no reasons for differing from the finding of the learned District Judge on this point and this contention urged in support of the appeal must, therefore, fail.
The result, therefore, is that we affirm the judgment and decree of the lower Appellate Court and dismiss this appeal with costs.
Appeal dismissed.