The Judgment of the Court was delivered by
B.K Mukherjea, J.:— This appeal is on behalf of defendant 1 and it arises out of a suit commenced by the plaintiffs, who purport to be the transferees of an occupancy holding, for a declaration that an ex parte rent decree obtained by defendant 1 as landlord against the recorded tenants and the execution sale in consequence thereof, under which the holding in arrears was put up to sale and purchased by the landlord, were fraudulent and inoperative and did not affect the plaintiffs' rights in the same. The facts material for our present purposes may shortly be stated as follows: The property in dispute is admittedly an occupancy holding and it was held by one Khos Muhammad under defendant 1 as landlord. In the landlord's sherista the holding was recorded in the names of the three sons of Khos Muhammad, namely, Amiruddin, Kamaruddin, and Badaruddin. On 8th March 1907, which was long before occupancy rights became transferable in law, Khos Mohammad sold the entire jote to three persons, to wit Muhammad Nesaruddin, Fesru Muhammad, and Kasimuddin. Subsequently, Nesaruddin died, and his one-third share in the holding was transferred by his widow and heiress Golapi Bibi to Fesru, who thus acquired two-thirds share in the holding, while the remaining one-third share belonged to Kasimuddin. There is no evidence that these purchasers were recognized as tenants by the landlord. They went on paying rents in the names of the old recorded tenants and in the dakhilas they were not even described as marfatdars of the latter.
2. In 1933, defendant 1 instituted a rent suit against the recorded tenants claiming rent in respect of the holding for the years 1336 to 1339 B.S This was registered as Bent Suit No. 4024 of 1933. It culminated in a decree and in execution of the decree the holding was put up to sale and was purchased by the landlord decree-holder on 5th February 1937. On 4th February 1939, the decree-holder purchaser took delivery of possession of the holding through Court. On 16th November 1939, the present suit was bought by Fesru and Kasimuddin as the two plaintiffs for a declaration that the ex parte rent decree obtained by defendant 1 was secured by fraudulent suppression of summons, and the sale in execution thereof was also tainted with fraud and material irregularities. The plaintiffs, it was averred, not being made parties to the rent suit or to the subsequent proceedings, their interest in the holding was not in any way affected by the decree and the sale. The original tenants or rather their heirs were impleaded as parties defendants to the suit,—defendants 2 to 8 being the heirs of Amiruddin and defendants 10 to 12 being the heirs of Badaruddin. Kamaruddin who is alive figures as defendant 9 in the suit. The suit was contested by defendant 1 alone. The contentions raised on his behalf, in substance, were that the suit was not maintainable in the present form and was barred under Section 42 of the Specific Relief Act. It was averred that the recorded tenants of the holding were the three brothers, namely, Amiruddin, Karamuddin and Badaruddin, and the holding being a non-transferable occupancy jote, the purchaser did not acquire any interest by the transfer which was not recognised by the landlord. Defendant 1 was consequently quite competent to proceed against the recorded tenants for recovery of arrears of rent and to put up the holding to sale in execution of a decree obtained against the latter. Defendant 1 denied that there was any fraud or suppression of notices in connection with the rent suit or the proceedings in execution thereof.
3. Both the Courts below have decreed the plaintiffs' suit. The trial Judge held inter alia that the Bent Suit No. 4024 of 1983 had not the effect of a rent decree, and the proceedings in execution of the same were vitiated by fraud. The plaintiffs' title to and interest in the holding were consequently not affected by the sale and they were entitled to the declaration prayed for. The District Judge who heard the appeal affirmed the decision of the trial Judge, but did not affirm all the findings arrived at by the latter. The District Judge held that there was no fraud committed by defendant 1 in the matter of the rent suit or the proceedings in execution thereof and that the plaintiffs were not entitled to any relief on the footing that the execution sale was vitiated by fraud. He held further that the decree obtained in Bent Suit No. 4024 of 1988 was a rent decree; but in spite of these findings, he concurred with the trial Judge in decreeing the plaintiffs' suit on the ground that on the decided authorities of this Court, he was bound to hold that the plaintiffs did acquire by adverse possession the limited interest of a raiyat long before the rent suit was brought by the landlord. Their interest, therefore, could not be affected by any decree to which they were not parties. It is the propriety of this decision that has been challenged before us in this second appeal.
4. We may say at the outset that the learned District Judge is somewhat inconsistent when he says that the decree in Bent Suit No. 4024 of 1933 had the effect of a rent decree, while he holds at the same time that neither the decree nor the execution sale were binding on the plaintiffs. If it was a rent decree proper, the entire holding would pass at the sale in execution of the decree, and the interest of the plaintiffs, if any, would stand extinguished by the sale. What the learned Judge probably meant was that the decree was not a money decree by reason of some of the recorded tenants being left out, as was contended on behalf of defendant 1. In his opinion, all the recorded tenants or their representatives were parties to the rent suit, and in this sense, it was a rent decree though according to him, the rent decree was of no avail against the present plaintiffs who had long before acquired the interest of tenants by adverse possession. Now, in the present case, it is not disputed that the holding was not transferable by custom, and that on the transfer of the entire jote by the original tenant, the landlord became entitled to re-enter the land at once. If the landlord does not take any steps to recover possession of the property and allows the transferee to remain in occupation of it for 12 years or more, the latter would acquire a limited interest of a tenant by adverse possession and the right of the landlord to recover khas possession of the land would be barred by limitation, unless he can make out a case under Section 18 of the Limitation Act, and prove that he was kept out of knowledge of his right to institute the suit by reason of any fraud committed by the defendant: vide 17 C.W.N 10881 and 19 C.W.N 136.2
5. Mr. Das argues before us that the transfer of a non-transferable holding by an occupancy raiyat to somebody else does not by itself absolve the original tenant from his liability to pay rent to the landlord. The landlord instead of re-entering the and may avail himself of the alternative remedy to sue the original tenant for rent and the decree obtained in such a suit would be binding on the holding and a sale in execution of the decree would pass the entire holding to the purchaser free and clear of the interest of the unrecognized transferee. The last proposition is undoubtedly true so far as it goes, but the question still arises as to how long the landlord can go on suing the original tenant for rent after the latter has transferred the entire holding to a stranger. If the law laid down in the cases mentioned above, to wit, 17 C.W.N 1088 and 19 C.W.N 136 is correct, and we have no doubt that it is so, an unrecognized transferee would acquire by adverse possession, the limited interest of a tenant against the landlord as soon as he has completed possession of the holding for a period of 12 years after his purchase. We cannot accept the view that the only effect of the acquisition of the occupancy right by the transferee would be that the landlord's right to sue him for khas possession would be barred, but that it would be open to the landlord to proceed even then against the original tenant for recovery of rent of the holding. The law of limitation, in our opinion, would not only destroy the landlord's right to recover khas possession of the holding, but it would create a corresponding right in the adverse possession as well. The transferee whose possession was prima facie adverse to the landlord from the date of his purchase would acquire the status of a tenant in the full sense of the word, and although the landlord did not recognize him as a tenant, he would have all the rights of a tenant by operation of the statute of limitation in his favour. As a logical corollary, it would follow that after a non-recognized transferee of a nontransferable holding has acquired the limited interest of a tenant by adverse possession against the landlord, the latter cannot proceed against the original tenant for rent. The sale in execution of a decree obtained against the original tenant without making the transferee a party to the suit would not affect the rights which the latter has acquired by adverse possession.
6. The decision in 11 Pat. 798,3 upon which Mr. Das strongly relies is not exactly in point, and the particular question which arises for decision in the present case was not agitated and could not arise for decision in that case. In that case, the transfer of a non-transferable holding was made in January 1907, and the rent decree was obtained by the landlord against the old tenant in 1917. The transferee had, therefore, not acquired, the limited interest of a tenant by adverse possession when the rent suit was brought or the rent decree obtained. In these circumstances, the learned Judges were perfectly right in holding that the sale in execution of the rent decree against the old tenant would pass the holding itself to the purchaser whether he be the landlord or a stranger and the rights of the transferee in possession of the land would become adverse against the purchaser only from the date of the execution sale. On the other hand, we have an express decision of this Court in 52 I.C 289,4 which lays down that where the transferee of a non-transferable occupancy holding has acquired the title of a tenant by adverse possession of the limited interest, the transferor is not liable for rent.
7. In our opinion, on the facts of this case, the plaintiffs did acquire by adverse possession the limited interest of a tenant long before the rent suit was brought by defendant 1 or the rent decree was obtained by him against the recorded tenants. Their interest, therefore, could not be affected by the sale in execution of the decree obtained in the alleged rent suit.
8. The result is that we affirm the decision of the Courts below and dismiss this appeal. We make no order as to costs in this Court.
Sharpe, J.:— I agree.
G.M/D.H
9. Appeal dismissed.