ENDAJ ALI BISWAS Vs. ARJUN CHANDRA BISWAS

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to recover possession on establishment of title of a certain occupancy holding.

(2.) The plaintiff, it appears, was the mortgagee from the original tenant and in execution of the decree obtained on his mortgage, proceeded to put the property to sale and himself became the purchaser. When he proceeded to take possession, he found the defendants Nos. 1 and 2, who are, the appellants before us, in possession am according to him, thereafter discovered the the holding which he had purchased in execution of the mortgage decree had already been put to Bale and bought by the land lords in execution of a previous decree for rent. He next proceeded to apply to have the sale set aside. He succeeded it this application and had the sale set aside on the 5th March 1919, But it transpired that though aware of the fact that the defendants Nos. 1 and 2 were in possession. of the holding and in possession by virtue of a settlement effected by the landlords in 1910, he did not make the defendants Nos. 1 and 2 parties to his application for setting aside the sale. In the Court of first instance it was held that defendants Nos. 1 and 2 were necessary parties to those proceedings and as against them, therefore, the plaintiff had obtained no title. In the Court of first appeal the learned Additional District Judge took the view that the landlords, who were also auction-purchasers in the proceeding for setting aside the sale, sufficiently represented their lessees, the defendants Nos. 1 and 2,

(3.) This is clearly wrong. The auction-purchasers, the landlords, by their lease to defendants Nos. 1 and 2 had already parted with the interest represented by that lease to defendants Nos. 1 and 2, and to the extent of that interest they can no longer represent their lessees. This is dear on principle and if authority were necessary, we may refer to the ease of Menajuddi Biswas v. Toam Mandal 15 Ind. Cas. 176 : 39 C. 581, In this view it is perhaps unnecessary to discuss the second contention in support of this appeal, namely, that the suit is barred by the two years rule of limitation to be found in Article 3, part 1 of the Third Schedule to the Bengal Tenancy Act. In execution of this rent decree the holding apparently was merged in the landlord s interest and when the landlord or the lessee claiming from him proceeded to take possession from the original tenants the dispossession is necessarily by the landlord and the two years rule will, therefore, appear to apply. It is, however, unnecessary to discuss this second contention at length, as on the first contention this appeal must succeed.