A transferee of a portion of a permanent tenure not impleaded in the rent suit is not affected by the decree for rent obtained by the landlord against the recorded tenant only.

Raj Kishore Prasad, J.

1. This Letters Patent Appeal is from the judgment of Mr. Justice S.K. Das, as he then was, in a second appeal. He allowed the appeal of Santlal, plaintiff 3, and set aside the concurrent judgments and decrees of the courts below, and, decreed the plaintiff-appellants suit.

2. Two questions arise for decision in the appeal: (i) Whether there was estoppel against the plaintiff? and (2) whether the plaintiffs suit was barred by limitation?

3. The disputed land, plot No. 446, under khata No. 469, in khewat No. 2, in village Bhitnaili Khemchand, is mokarri istimarari tenure, and is recorded in the names of Lachmi Prasad (defendant 8) and his brother Kamla Prasad, having -/5/4 share therein. On the 8th June, 1922, they mortgaged their 5 annas 4 pies share to plaintiff 3, Santlal, who took the mortgage in the benami name of defendant No. 6, his own) brother-in-law, being the brother of his wife, Mst. Biranchibati. Thereafter, on the 7th November, 1923, they sold their interest in the tenure to one Jagat Narain, who in his turn, on the 15th October, 1925, sold it to Santlal, plaintiff S, who got the sale, in the name of defendant 7, who was the son of his brother-in-law, defendant No. 6, his admitted benamidar.

4. In 1929, the Darbhanga Raj, who was the superior landlord, brought a rent suit for recovery of arrears of rent in respect of the tenure against the recorded tenants Lachmi Prasad and Kamla Prasad, and two others, including Mst. Biranchibati, the wife of Santlal. A decree was obtained, and, in execution of the decree, the tenure was sold on the 11th of March, 1931, and purchased by Misri Lal, predecessor in interest of defendants 1 to 3, and, Kishun Prasad, defendant 4. By some family arrangement, the property purchased by them has now fallen to the share of defendants 3 and 4, who alone contested the suit, and, who are the appellants before this court.

5. The auction sale held on the 11th of March, 1931, was confirmed on the 16th of March, 1932, and, the auction-purchasers obtained delivery of possession over the auctioned tenure sometime in August 1932. The plaintiff 3 filed an application under Order XXI, rule 90 of the Code of Civil Procedure for setting aside the sale, but he was unsuccessful.

6. Ultimately, on the 27th of August, 1943, the plaintiffs, Santlal and his two sons, brought a suit, for declaration of title and recovery of possession, in respect of the disputed khewat 2.

7. The suit was valued at Rs. 205/-, which was the price, for which the tenure was sold on the 11th of March, 1931. The question of valuation was raised, and, it was held that the proper valuation was Rs. 4,500/-. As that amount exceeded the pecuniary jurisdiction of the Munsif, where the suit had been, instituted, the plaint was ordered to be returned on the 14th of September, 1945, but it was actually returned on the 15th of September, 1945. The plaint was thereafter represented before the Subordinate Judge on the 17th of September, 1945.

8. Plaintiff 3s claim was that his interest in the tenure, which he had purchased from Jagat Narain on the 15th of October, 1925, was not affected by the rent sale, held on the 11th of March, 1931, as he was not a party to the rent suit brought by the superior landlord in 1929 against the recorded tenants, or to the decree in which the decree under execution was obtained.

9. Mr. Justice Das, in the second appeal, held, in disagreement with the courts below, that there was no estoppel against the plaintiff; and, as neither the plaintiff 3 nor his benamidar, defendant No. 7, had been made parties to the rent suit brought by the superior landlord, the plaintiff 3s interest to the extent of -/5/4 in the tenure did not pass at the rent sale, and, as such, the plaintiff 3 was entitled to get back possession of that interest, provided the suit was not barred by limitation. On the question of limitation, his Lordship held that plaintiff 3 was entitled to the benefit of Sec.14 (1) of