1. The plaintiffs sued to obtain possession as auction-purchasers of the right of Parbhu Singh in a dur-mokurari tenure at an execution-sale held on the 15th of June 1875. The dur-mokurari tenure was held jointly by Parbhu Singh and Bal Gobind.
2. The defendants, who represent the mokuraridar, brought a suit against the dur-mokuraridars for arrears of rent for certain months-i.e., from Magh to Joyt 1282, corresponding with January to May 1875. That suit was not commenced until the 25th of August of that year, and the decree in it is dated the 27th of September 1875. That decree contains an order framed under Section 52 of the Rent Law, directing the ejectment of the dur-mokuraridars in the event of the arrears decreed not being paid within fifteen days. That suit was brought and decree obtained after the sale of the interest of Parbhu to the plaintiffs without any reference to them.
3. It may be that the landlord was justified in refusing to notice the transfer of this tenure as one; which required registration, in consequence of its not having been registered; but although the decree against. Parbhu may so far be sustainable, we think that the purchasers are at liberty to question the validity of the decree so far as it directs the cancelment of the tenure. The question is not really whether there was any collusion between the superior tenant and the former dur-mokuraridars, but whether the decree obtained by the mokuraridar is one which could have been legally made. That this question may be raised by the auction-purchasers is clear from the decision of the late learned Chief Justice Sir Richard Couch in the case of Tribhobun Singh v. Jhono Lall (18 W.R., 206). The language there used is as follows: “Therefore the facts appear to be that this was a transferable tenure that might and ought, according to the provisions of Act X of 1859, to have been sold; but, instead of the Collector making the proper decree–namely, a decree for sale–a decree of ejectment under Section 78 of Act X was made. Now, the present plaintiff, the mortgagee, was not a party to these proceedings; if he had been, the proper course would have been to question the validity of the decree for ejectment under Section 78 by an appeal, but having been no party to those proceedings, the plaintiff is now, we think, at liberty to question the validity of that decree and to show that in fact the Collector had no power, under Act X of 1859, to make a decree for ejectment.”
4. We, therefore, remand the case to the Subordinate Judge that he may try and determine whether the dur-mokurari tenure was of such a character that it could be properly cancelled by a decree for ejectment made under Section 52 of Beng. Act VIII of 1869, or whether it was not a transferable tenure in respect of which the proper procedure was to hold a sale. Costs will follow the result.