The main legal point established is the interpretation of the Bengal Tenancy Act and Section 146A in determining the effect of a rent suit and sale on the interests of co-owners.

JUDGMENT

R.C. Mitter, J. - The subject-matter of this suit is an area of two cottas of land in the town of Rampurhat. The said plot was originally held by one Krishna Dhone Dutt as a tenant. In 1895 Krishna Dhone sold the same to Rasik who in his turn sold the same in 1306 to one Kunja Ghose. Kunja Ghose thereafter sold the same to one Purna Ghose, the sister's husband of the plaintiff and defendant 2 who are brothers. It is the common Case of the parties that Purna Ghose was not the beneficial owner but was the benamidar, the case of the plaintiff being that he was his benamidar as well as the benamidar of his brother defendant 2. The case of defendant 1, however, is that he was the benamidar of defendant 2 alone. Both the Courts below however have found that Purna Ghose was the benamidar of the plaintiff and his brother, defendant 2, with the result that the beneficial interest in the property vested both in the plaintiff and defendant 2 in equal shares. In the year 1323 B.S. defendant 2's name only was mutated in the landlord's sherista. In the finally published record of rights both the plaintiff and defendant 2 were, however, recorded as in possession. On 15th April 1929, the landlord instituted a rent suit being rent suit No. 809 of 1929 against defendant 2 alone who was the only tenant recorded in his sherista. The claim in that suit was for arrears of rent from 1332 to 1335 B.S. He recovered a decree and in execution of that decree the property was put up to sale and was purchased by defendant l. The plaintiff thereupon brought this suit for a declaration that his 8 annas share in the property has not been affected by the alleged rent sale of the landlord at which defendant 1 had purchased, as he was not made a party to that rent suit. This question would depend upon two considerations: (1) whether the tenancy is governed by the Bengal Tenancy Act and (2) if it was so governed, whether defendant 2, who was the sole defendant in the rent suit, could be said to have represented in that suit his brother, namely the plaintiff.

2. On the first point the learned Subordinate Judge has come to the conclusion that the tenancy in respect of which the rent suit had been brought was a non-agricultural tenancy, that is to say a tenancy not governed by the provisions of the Bengal Tenancy Act. On this finding the question as to whether defendant 2 represented his brother in the rent suit was not material. But the learned Subordinate Judge went into that question also and recorded a finding that defendant 2 could not be said to have represented his brother, the plaintiff, in the rent suit inasmuch as the landlord was bound to make the plaintiff a party defendant also, he having paid rent to the landlord along with his brother, defendant 2, on 30th of Pous 1331, that is to say within the period of three years of the claim for rent made in the said rent suit. He accordingly came to the conclusion that even assuming that the tenancy in question was governed by the Bengal Tenancy Act, the decree passed in the rent suit had not the effect of a rent decree and the sale held in execution thereof was not. a sale held under Ch. 14, Ben. Ten. Act, as the plaintiff had not been impleaded as a defendant in the rent suit. I now proceed to examine whether these two conclusions of the learned Judge are sound.

3. The learned Subordinate Judge has recorded the finding that the origin of the tenancy cannot be traced, that is to say, there is no evidence to show the express purpose for which the lands were taken settlement of by Krishna Dhone Dutt. He further recorded the finding that it is bastu land but neither defendant 2 nor the plaintiff ever lived on the land. They have their homesteads in other lands. The evidence of user, therefore, assumes importance. On that point the learned Subordinate Judge has recorded the finding that the plaintiff and defendant 2 have other raiyati lands near about, that they gather the crops from their raiyati lands and s