The mortgage to the plaintiff was considered an incumbrance under Section 161, Ben. Ten. Act, and the landlord purchaser was required to annul the incumbrance under Section 167, Ben. Ten. Act, to acquire rights against the landlord purchaser.

JUDGMENT

B.K. Mukherjea, J. - This is an appeal on behalf of the plaintiff and it arises out of a suit commenced by him to recover possession of the lands in suit on establishment of his title by purchase at a mortgage sale. The facts so far as are material for our present purposes may be stated as follows : The lands in suit constituted a raiyati holding carrying a rental of Rs. 19 a year, and belonged to one Nikaria Bibi. Nikaria died leaving behind her a son named Nedu and a daughter, Purna Bibi. On 17 th May 1913, Nedu who had only two-third share in the holding, executed a mortgage deed in respect of the entire lands in favour of one Gurudas, the predecessor of the plaintiff, to secure an advance received from the latter. A person named Amo Pramamk joined as a co-mortgagor in this mortgage bond, but it is admitted that he had no interest in the property. On 16th April 1914 the same mortgagors created a second mortgage of the same property in favour of the Bogra Loan Company. On 22nd April 1922, the landlord of the holding who is defendant 22 in this suit and who had already obtained a rent decree against Nedu and Purna, put up the holding to sale in execution of the rent decree and purchased it himself. The sale was confirmed on 26th May 1922 and the purchaser took possession through Court on 4th August following. The landlord purchaser then settled portions of the land with defendant 1 and one Nayebulla and possessed the rest in khas. In the meantime, the Bogra Loan Company, who were the second mortgagee with regard to the holding obtained a decree on the basis of their mortgage and in execution of that decree the holding was again put up to sale on 19th March 1925, and purchased by one Soleman, who is defendant 8 in this suit. After this, Gurudas, the first mortgagee, instituted a suit to enforce his mortgage bond. Soleman was made a party to this mortgage suit, but not the landlord who purchased the holding at a rent sale in the year 1922. Gurudas obtained a decree on 19th August 1926. The plaintiff got an assignment of this decree from the wife and heir of Gurudas, and on 3rd November 1933 purchased the mortgaged lands in execution of the same. On 30th March 1934 the plaintiff took symbolical possession through Court. In the meantime the tenancies in favour of defendant 1 and Nayebulla were sold in execution of the rant decrees obtained against them by the landlord and they were purchased by the latter. After this purchase the landlord settled these lands with defendants 12 and 23. The plaintiff's case is that when he attempted to take actual possession of these lands he was resisted by all the defendants acting in concert which obliged him to institute the present suit.

2. The suit was contested by defendants 8, 12, 17, 22 and 23 and their defence in sub-stance was that the plaintiff could not acquire any title to the property against the landlord purchaser at a rent sale, and that the suit was barred both by the rules of general and special limitation. It was further alleged that Nedu, the mortgagor, having no more than a two third share in the holding, the plaintiff could not have, in any view of the case, got more than that share by his purchase in execution of the mortgage decree. This last point, it may be pointed out, was not disputed by the plaintiff at the time of the trial, and it was conceded that if the plaintiff were to succeed at all, he could not recover more than a two-third share of the property in suit.

3. The Munsif who heard the suit was of opinion that the mortgage to Gurudas was an incumbrance on the raiyati holding under the provisions of Section 161, Ben. Ten. Act, and as the landlord purchaser did not annul the incumbrance in the manner contemplated by Section 167 of the Act, his purchase was subject to the mortgage; and the plaintiff therefore did acquire a title to the property as against the landlord by virtue of his purchase at the mortgage sale. He held however that though the plaintiff's su