P L D 1958 Dacca 128 (PLP)

The suit was contested by defendant No. 4, the settlement holder in under‑raiyati right from the heirs of Maniruddin during the execution proceeding. The plaintiffs contend that the settlement in favour of defendant No. 4 by the heirs of Maniruddin is collusive and fraudulent and also illegal and void and, as such, it is not an incumbrance to be annulled under section 167 of the Bengal Tenancy Act, but, as a matter of precaution, notice under section 167 of the Bengal Tenancy Act has been served. The plaintiffs also kept reserved their right to claim mesne profits thereafter. The contention of the contesting defendant mainly is that the plaintiffs auction‑purchasers are the benamidars of the judgment‑debtor Abdul Gazi. He further claimed that the under‑raiyati settlement taken by him out of the share of Maniruddin from his heirs by the patta executed on 30th April 1941, is valid and binding on the auction‑purchasers as it was not annulled by notice under section 167 of the Bengal Tenancy Act. His alternative contention is that even if the notice was served it was after one year from the date of the sale and so the plaintiffs were not entitled to eject him from the pattai land. The main questions which arose for determination in the Courts below are (1) whether the transfer by way of under raiyati settlement to defendant No. 4 is void under section 64 of the Code of Civil Procedure ; (2). whether the sale was a rent sale under the Bengal Tenancy Act as; Bidhujan, a sister of Paban Gazi, who inherited a share out of the share of Paban Gazi, was not impleaded and (3) whether notice under section 167 of the Bengal Tenancy Act was served and, if served, whether it was beyond time. Both the Courts below found that the transfer by way of under‑raiyati settlement to defendant No. 4 by the heirs of Maniruddin, a 1/3rd co‑sharer out of his share, was during the pendency of the attachment of the property under Order XXI, rule 54 of the Code of Civil Procedure and, as such, it is void under section 64 of the Code. They also found that the decree was a rent decree and the sale a rent sale. As to the service of notice under section 167 of the Bengal Tenancy Act, both the Courts below held that the transfer being a void transfer (the dar‑raiyati being created by settlement during the period of attachment was void), it was not an encumbrance and notice under section 167 of the Bengal Tenancy Act was not necessary to be served. Hence this appeal by the defendant. It is contended by Mr. Khadem, the learned Advocate for the appellant, that though there was an attachment under Order XXI, rule 54 of the Code of Civil Procedure in execution of the decree for rent, that attachment automatically ceased to operate on account of the execution proceeding by a notice under section 34 of the Bengal Agricultural Debtors Act after the withdrawal of which the, plaintiffs‑decree‑holders applied for fresh proclamation and attachment. Both the Courts below found that there was a notice under section 34 of the Bengal Agricultural Debtors Act staying all further proceed ings of the execution case and that, when that notice was withdrawn, the decree‑holder filed an application for fresh proclamation and fresh attachment of the property and there was an order for fresh attachment, Both the Courts also found that there was an order for attachment but actual attachment was not made afresh. It appears from the record that it is a continuation of the same execution case started by the decree‑holders. It also appears that the execution proceed ing was stayed by a notice under section 34 of the Bengal Agricultural Debtors Act after attachment and issue of the sale proclamation fixing a date for sale. As that notice under section 34 of the Bengal Agricultural Debtors Act was not withdrawn within 30 days from the date fixed for the sale, a fresh proclamation was necessitated under the provisions of the Code of Civil Procedure. It was not necessary for the decree‑holder to apply for a fresh attachment. The original attachment continued ; still the decree‑holder applied for fresh attachment, , and order for fresh attachment was issued, though the property was not actually attached in pursuance of the order of fresh attachment. When the execution case was not struck off or dismissed for default of the decree‑holder, there cannot be any doubt that the attachment effected under Order XXI, rule 54 of the Code of Civil Procedure continued. Simply because the decree holders applied for fresh attachment does not make the previous attachment cease to operate. Both the Courts below. I think, are perfectly right in holding that the dar‑raiyati settlement granted to defendant No. 4 by the heirs of Maniruddin out of his 1/3rd share in the land during the operation of the attachment is void under section 64 of the Code of Civil Procedure. If it is void, then it is not an encumbrance to be annulled by a notice under section 167 of the Bengal Tenancy Act. It is no doubt true that the notice under section 167 was served beyond one year from the date of confirmation of the sale. Therefore, it is an ineffective notice. But both the Courts below are right in holding that it is not an encumbrance and, therefore, need not be voided. As to the nature and effect of the decree in the rent suit, the learned Advocate for the appellant contends that Bidhujan not having been impleaded in the rent suit and in the execution proceedings the decree cannot have the effect of a rent decree and the sale of a rent sale. It appears from the record that the C. S. Khatian records the names of Paban Gazi, Abdul Gazi and Maniruddin and there is no dispute that Bidhujan is the sister of Paban Gazi and Abdul Gazi. After the death of Paban Gazi, Bidhujan inherited 1/3rd share out of the share of Paban Gazi. She is an heir of the recorded tenant having residence in the Mouza of the tenancy and so she or her heirs ought to have been impleaded in the suit and in the execution proceeding in order to make it a representative one under section 146‑A of the Bengal Tenancy Act. But that has not been done and the effect is that the decree in the rent suit is a money decree and the sale in execution of that decree is a money sale and the plaintiffs have acquired only the right, title and interest of the judgment‑debtors. In other words, k the right, title and interest of Bidhujan and her heirs, who are not parties to the suit and the sale proceedings are not affected by the sale. But that does not help very much defendant No. 4 who claims not from Bidhujan or her heirs but from the heirs of Maniruddin, who are parties to the decree and and the sale proceeding, by lease during the attachment under Order XXI, rule 54 of the Code of Civil Procedure which is void under section 64 of the Code of Civil Procedure. The learned Advocate for the appellant then contends that possession of the defendant is that of a trespasser and the plaintiffs being purchasers in a money sale have not acquired 16 annas interest in the properties and, as such, they alone cannot eject defendant No. 4 from the suit land and are not entitled to get khas possession of the suit land. In the case of Joy Gopal Singh and others v. Probodh Chandra Bhattacharjee and others (40C W N81), it has been held by Nasim Ali, J., with whom Hendersorn, J., concurred:‑ "A co‑sharer by himself cannot get against a trespasser a decree for ejectment from the whole of the land, but can only get a decree for joint possession to the extent of his share. He has to work out his further rights by means of a suit for partition". In the case of Thresh Chandra Basu v. Hayadar Shaikh Khan (49 CLJ 83), Mitter, J., relying on the opinion of Baron Parke and Baron Alderson in the case of Deo D. Hellyer v. King ((1851) 20 L J Exch. 301), held that a co‑sharer can only recover joint possession as against a trespasser to the extent of his share in the joint property. This decision of Mitter, J., was approved by Rankin, C. J., in L. P. A. 104 of 1928. But these are cases where one of the co‑sharers in an action for ejectment claims khas possession of the entire land. In the present case, Bidhujan inherited 1/3rd share out of the share of Paban Gazi. Paban Gazi had 1/3rd share in the tenancy and, therefore, the share of Bidhujan is 1/9th. According to this calculation, if no other heir of the original tenant is left out, the share of the plaintiffs would be 8/9th. In their action for ejectment and khas possession of the land, the plaintiffs impleaded the heirs of Bidhujan who are defendants Nos. 25 to

34. Defendant No. 4 does not claim any interest from Bidhujan or her heirs. He claims interest by lease from the heirs of Maniruddin during the attachment under Order XXI, rule 54 of the Code of Civil Procedure which is void under section 64 of the Code. In the case of Joy Gopal Singh, his Lordship Nasim Ali, J., observed at page 82 of the report as follows "If two persons are joint owners and a third person holds the land with the express sanction and acquiescence of one of the co‑sharers he cannot be ejected from the' whole of the land by the other co‑sharer. The latter can get a joint possession to the extent of his share." In the present case, it is not the case of defendant No. 4 that 1 he is possessing the land or claiming possession through any of the heirs of Bidhujan, and Bidhujan's heirs have been impleaded in the present suit as defendants Nos. 25 to

34. The case reported in 40 C W N 81 and the case reported in 49 C L J 83, mentioned above, are all cases, as it appears from the facts of those cases, where the remaining co‑sharers were not impleaded in the suit. Whereas in the present suit, the plaintiffs impleaded the remaining co‑sharers, the question of getting joint possession with the trespassers does not arise, all the co‑sharers being parties to the suit. As the possession of defendant No. 4 is not referable to any of these co‑sharers; I think the defendant is liable to be evicted. The result, therefore, is that this appeal is dismissed with costs. Z. A. S. Appeal dismissed.