Shaikh Abdul Gaffar and Others vs F.B. Downing and Others

Jwala Prasad, J.—The plaintiffs, who are the appellants before us, claim to recover possession of an eight annas-share of a patni Taluq Mahals Khoragach, Bormasea, Dipnagar, Kantari and Sedabad in Pergana Fetehpur-Sedia, District Purnea, upon a declaration of their title thereto and upon a declaration that the sale of the putni on 4th November 1920, in execution of a certificate debt for arrears of rent under the Bihar and Orissa Public Demands Recovery Act (IV of 1914), is fraudulent, illegal, null and void and not binding upon them.

The 16 annas disputed putni taluq was originally owned by the Defendants Nos. 2 and 3, Janardan Prasad Thakur and Tirpurari Prasad Thakur, who, for convenience sake, will hereafter be referred to as the Thakur defendants.

Previous to the present sale in question, the putni was sold in execution of a certificate debt for arrears of rent and was purchased by Defendant No. 4, Haji Shaikh Majidur Rahman. By a compromise, the auction-purchaser, Defendant No. 4, retained the eight annas share and the other eight annas share went to the Thakur defendants. Thus Defendants Nos. 2--4 became owners of the putni taluq in 1909 and their names were recorded in the register of the zamindar, Defendant No. 1.

Defendant No. 5 is the purchaser of the putni taluq at the auction-sale now sought to be set aside.

Defendant No. 4 is a step-brother of the plaintiffs and in 1907 was appointed guardian, under the Guardians and Wards Act (VIII of 1890), by the District Judge of Purnea, of the two plaintiffs and his other brothers, Abdul Wahab, Abdul Halim, Abdul Samad, Abdul Sattar and Muhammad Siddique who were all minors at that time. Plaintiff No. 1, Abdul Gaffar, and his two brothers, Abdul Sattar and Abdul Siddique, attained majority in the year 1916 and the guardianship of Haji Shaikh Majidur Rahman ceased. By a compromise petition, Ex. 3, filed before the District Judge on the 26th February 1915, Haji Shaikh Majidur Rahman''s guardianship was withdrawn from the person and properties of the remaining brothers also, namely, Abdul Jabbar, Abdul Halim, Abdul Wahab and Abdul Samad and in his place their mother Mt. Nasiban was appointed guardian: vide Ex. 5, extract from order sheet in Miscellaneous Case No. 21 of 1907.

The plaintiff''s case is that Defendant No. 4 purchased the putni taluq at the first certificate sale in the year 1909 for himself as well as for the plaintiffs and his other minor brothers; and that after the eight annas of the putni was returned to the Thakur defendants, the plaintiffs and their other brothers remained in joint possession of the remaining eights annas share in the taluq through Defendant No. 4, Haji Shaikh Majidur Rahman, who alone was the recorded tenant in respect of their moiety share. They further say that by a private family arrangement, their step-brother Defendant No. 4, ceased to have any share in the putni taluq and the whole moiety share in the putni was allotted to the plaintiffs and their full brothers, Abdul Wahab, Abdul Samad and others. The plaintiffs says that they and their brothers and not Defendant No. 4 have been in exclusive possession of the said eight annas share in the said putni taluq and have been paying rent in respect; thereof. Consequently the plaintiffs say that the certificate should have been issued in their names and notice thereof should have been served upon them and not upon Shaikh Majidur Raham, who had ceased to have any concern with the putni taluq, and they impugn the certificate proceedings and the sale held in execution thereof as having been brought on account of fraud and collusion of Defendants Nos.2--5, who are inimically disposed towards them in order to deprive the plaintiffs of their share in the putni. They also say that on account of collusion the processes were not served in accordance with law and the service returns were fraudulently obtained in collusion with the Court peon, and the plaintiffs were kept out of knowledge thereof with the result that the property in dispute was sold for a very Inadequate value.

Defendant 1st party No. 1, Manager, Court of Wards, filed one written statement and Defendant No. 5, of the third party, filed another written statement. They deny that there was any fraud or collusion in the preparation or issue of the certificate, the service of processes or in the sale in execution of that certificate. They also deny that the plaintiffs have any interest in the putni or that they ever paid any rent in respect of it or that there was any private partition between the plaintiffs and their co-sharers. They deny any knowledge of the plaintiffs'' possession as putnidars or that there was any collusion between them and the other defendants in bringing the property to sale. They assert that the property was sold at an adequate price and that the notice and other processes were duly served in accordance with law and that the plaintiffs not having been recorded in the office of the zamindar as holders of the putni had no right to the certificate being issued in their names or any process being served upon them and that they have no status to bring the suit.

The Subordinate Judge dismissed the plaintiffs'' suit holding that the certificate was properly drawn up and issued and that the processes, including the sale proclamation, were duly served and ware not fraudulently suppressed as alleged by the plaintiffs inasmuch as their servant Yusuf, bade at the sale up to Rs. 6,000 and that the price fetched at the sale, Rs. 7,000, was not, in any way, inadequate. Inasmuch as the plaintiffs did not get their names recorded, the learned Subordinate Judge held that they were not entitled to be made party to the certificate proceeding or any notice served upon them even if they had any interest in the tenure and the purchaser at the auction-sale acquired good title.

The principal contention in this appeal of the learned advocate on behalf of the appellants is that the plaintiffs'' title to an eight annas share in the putni taluk has been conclusively established and that their title and interest therein is not affected by the sale of the putni inasmuch as they were not parties to the certificate proceedings. The plaintiffs base their title upon the auction-purchase of the putni in 1909 in the name of their step brother, Defendant No. 4, in execution of a certificate sale for arrears of rent. They say that Defendant No. 4 at that time was guardian appointed by the District Judge, under the Guardians and Wards Act (VIII of 1890) of the person and property of the plaintiffs and their other minor brothers, and that subsequently, on the 25th February 1915, by a private partition, the eight annas share in the putni taluq was allotted to the share of the plaintiffs and their other brothers. For this they rely upon an inventory or takhtabandi filed with the petition, Ex. 3, dated 25th the February 1915, in Misc. Case No. 21 of 1907. In that inventory this property has been described as having been allotted to the plaintiffs and their other brothers. Defendant No. 4 was a party to the petition and signed it. In paragraph 3 of the petition, referring to the takhtabandi, it is stated as follows:

The parties shall execute with in three mouths a taksimnama or partition deed of the properties in accordance with the terms of the parties.

Abdul Gaffar, Plaintiff No. 1, in his evidence admits that a, deed of partition was drawn up but was not registered, As to actual possession over the property he says that he had never had the occasion to go to the Mahals and his servants looked after it, and names one Narayan Chaudhry as his tahsildar. He also says that the papers showing collections are kept, but neither any collection paper have been filed nor has any tahsildar been examined.

The plaintiffs then rely upon the petition, dated the 13th January 1920, Ex. 2, field by Defendant No. 4 in the certificate proceedings stating that the plaintiffs, along with their brothers and their mother are in possession of the property and that it belongs to them and that he himself had no concern with it. This petition of disclaimer by Defendant No. 4 cannot confer any right upon the plaintiffs. They must prove their title and possession by better evidence. The Plaintiff No. 1 became major in the year 1915 and both the plaintiffs were released from the guardianship of their stepbrother, Defendant No. 4. If they had, been in possession of the property they would have been in a position to give better evidence. The only evidence is the oral statement of the plaintiff No. 1, and in my opinion this is not sufficient to establish the plaintiff''s possession over the property in dispute. No doubt the rent receipts and chalans, Exs. A and 1 to 1(e), show that rents used to be paid by the plaintiff: but in all these receipts they have been mentioned as marfatdars meaning that the rents ware paid through them. The payments were made by them not as tenants of the holding but on behalf of the recorded tenant, Majidur Rahman, whose name is mentioned in the receipts as tenants, Such marfatdari receipts have been held as not constituting any relationship between the payer and the payee, nor any recognition of the payee''s right as tenant. These receipts therefore cannot prove any tenancy right of the plaintiffs nor any recognition of such a right by the zemindar. D.W. No. 5, Asgar Ali, the Head Clerk of the Court of Wards, says that the plaintiff never asked him to substitute his name. Plaintiff No. 1 himself admits that he did not file any application for mutation of his name and that he was aware that a fee of Rs. 5 on the jama is paid to the zamindar for effecting mutation. He was certainly conversant with the rules and practice on the subject as is stated by D.W. No. 1 Gowhar Ali, the certificate clerk, that the Plaintiff No. 1, Abdul Gaffar, often used to come to the Collectorate. Therefore the plaintiffs for some reason or other knowingly and deliberately did not get their names registered in respect of the share they claim in the putni. The plaintiffs are not clear about the extent of the interest they had in the putni. Plaintiff No. 1 says that the other two brothers are also interested in it and that the plaintiff''s share is only four annas. The petition, Ex. 2, also shows that not only the plaintiffs but their brothers and stepmother were all interested in the putni.

The plaintiffs have failed to prove satisfactorily the interest claimed by them in the tenure in question and their possession thereof. Even if they acquired any interest by the auction purchase of Defendant No. 4 in 1909 and subsequently by allotment in the partition of family properties, they did not get their names recorded in the zamindar''s sarishta and allowed Defendant No. 4 to continue as a recorded holder of the tenure along with the Thakur defendants Nos. 2 and 3. Can they contend that their interest is not affected by the sale of the tenure for arrears of rent held in certificate proceedings under the Bihar and Orissa Public Demands Recovery Act (IV of 1914) against the tenants whose names were recorded in the zemindar''s sarishta?

The tenure in question is admittedly a patni tenure and designated as "patni mahals" in paragraph 1 of the plaint. It is unquestionably governed by the Patni Regulation VIII of 1819 Brindaban Chunder Sircar Chowdhry v. Brindaban Chunder Dey Choudhry (1873) 1 IA 178. This is not disputed by the learned advocate on behalf of the appellants.

By Section 3 of the Regulation the tenure is "capable of being transferred by sale, gift or otherwise at the discretion of the bolder as well as answerable for his personal debts and subject to the process of the Court of Judicature in the same manner as other real property." The transfer, however, is subject to the payment of fees and security to the landlord as required by Section 5 and until those conditions are fulfilled the landlord has a right to refuse to register and otherwise to give effect to such alienations by discharging the party transferring his interest from personal responsibility and by accepting engagements of the transferee": vide Section 5. The transferee can seek his remedy in the civil Court to compel the zemindar to give effect to the transfer if the security tendered is not accepted by the landlord: vide Section 6. But until the registration of his name has taken place, the transfer does not affect the zemindar''s right and it does not create any relationship of landlord and tenant. In spite of the transfer the landlord may ignore the transferee and may continue to hold the recorded tenant responsible for the rents and other obligations imposed upon the tenure: and if the tenure is sold by the landlord for the arrears of rent due therefore in a proceeding against the recorded tenant, the purchaser acquires the tenure free from any incumbrance created upon it by act of the defaulting proprietor, his representatives or assignees. The zemindar has an indefeasible right to hold the tenure answerable for the rent which is his reserved property in the tenure. The whole tenure at such a sale passes, and not only the right, title and interest of the recorded tenant so that the interest of an unrecorded transferee ceases and he has no right to impung the sale upon the ground that he was not made a party to the proceedings taken by the landlord in selling up the tenure for the realization of his rent.

The obligations of having his name recorded in the landlord''s sarishta are the same in the case of a purchaser in execution of a decree other than a decree for arrears of rent due from the tenure. In the latter case the purchaser is not required to pay any fee, though he is liable to be called on to give security under the conditions of the tenure purchased: vide the last portion of Section 5.

The zemindar can refuse to accept a tender or any amount of rent from on unregistered transferee of a patni and he is not bound to recognize deposits of rent made by such a transferee in his own name; vide the case of Saibesh Chandra Sarkar v. Kumar Bonowari (1909) 10 CLJ 453.

The above is the effect of the various provisions in the Regulation and it was put in a nutshell by Sir Comer Petheram C.J., in the case of Joykrishna Mukhopadhya v. Sarfannessa (1888) 15 Cal 345. His Lordship observed as follows:

The effect of the provision of those Sections (Ss. 5 and 6) amounts to this: that upon an alienation or transfer by the putnidar the zemindar may exact a fee, which represents his profits, being the portion of his interest in the property whenever a transfer of the tenure is made, the amount of which is regulated by the Regulation itself, and further than that, until that fee has been paid the zemindar shall not be bound to register the transfer and further than that until transfer has been registered he shall not be bound to recognize the transfer in any way, that is to say until this demand has been satisfied and registration has been effected, the old tenant remains his tenant, and the relation of landlord and tenant has not been created between him and the assignee of the putnidar, whatever the arrangement may be between the putnidar and his assignee.

No doubt, as held in that case, an unregistered assignee though he cannot claim to be a tenant of the landlord and so release his assignor, yet has an interest independently of the Regulation and can impugn a sale held under the Patni Regulations as being no sale at all and as being void against everybody else. He can have the sale set aside on the ground of its being illegal or irregular, or tainted with fraud. And if he succeeds in getting the sale sat aside on the above grounds, he will be restored to the position which he had before the sale. But he has no right to have the sale set aside upon the ground that he was not party to the proceedings taken by the landlord to realise his rent by sale of the holding. This view is supported by a string of cases quoted at the Bar, which for the sake of reference are given hereunder: Nitaya Behari Saha Paramanick v. Hari Govinda Saha (1899) 28 Cal 677; Gyanada Kantho Roy Bahadur v. Bromomoyi Dassi (1890) 17 Cal 162; Surendra Narain Singh v. Gopi Sundari Dasi (1905) 32 Cal 1031; Lackhi Narain v. Khettro Pal (1873) 20 WR 380; Surendranath Pal Choudhry v. Tinchowri Dasi (1893) 20 Cal 247; Rajnarain Mitra v. Ananta Lal Mondul (1892) 19 Cal 703; Rajah Sir Sourindra Mohan Tagore v. Moharani Surnomoyee (1898) 26 Cal 103; Golam Sattar v. Maharaja Sir Prodyat Kumar Tagore Bahadur AIR 1919 Cal 397 ; Behari Lal Biswas Vs. Nasimannessa Bibi, and Sourendra Narayan Singh v. Gopi Sundari Dasi (1905) 32 Cal 174.

The learned advocate on behalf of the appellants has equally cited a number of authorities, namely, Kali Kumar Ghose v. Bidhu Bhusan Banarji (1911) 16 0 LJ 89; Ishan Chandra Sarkar v. Beni Madhab Sarkar (1897) 24 Cal 62; Raja Jagadish Chandra Deo v. Dhabel Deb AIR 1918 Cal 461; Probhash Chandra Chattarji v. Jaharuddin Mondal AIR 1920 Cal 830, Kali Kumar Ghose v. Bidhu Bhushan Banerji (1911) 16 0 LJ 89 and Gobinda Sundar Sinha Chowdhury v. Srikrishna Chakravarty (1909) 10 CLJ 538.

On the strength of these authorities it is contended that a transferee of a tenure is not bound by the sale in execution of a decree to which he was not a party. The authorities relied upon are either cases where the sale was brought about on account of fraud and collusion with a view to deprive the purchaser of his right or are cases under the Bengal Tenancy Act the provisions whereof relating to the sale or transfer of a permanent tenure and recognition thereof by the landlord are different from those contained in the Patni Regulations. On the other hand, where a transferee, without any sufficient cause omits to get his name registered, he is bound by the sale held in execution of a decree against the recorded tenant ven in a case governed by the Bengal Tenancy Act. For instance, vide Sham Chand v. Brojonath (1874) 21 WR 94; Profulla Kumar Sen v. Nawab Sir Slimulla Bahadur AIR 1919 Cal 62; Raja Jagadish Chandra Deo v. Dhabel Deb AIR 1918 Cal 461; Probash Chandra Chattarji v. Jahar-ud-din Mandal AIR 1920 Cal 830 and Rameshwar Singh Bahadur Vs. Mt. Rajo Chowdhrain, . In the present case the title set up by the plaintiff is further affected by the fact that they claim to have obtained only eight annas share in the patni taluq in question. Section 6 says that the rules of that section and of Section 5 do not apply to transfers of any fractional share of a patni taluq nor to any alienations other than transfers of the entire interest unless made the zamindar''s special sanction. The plaintiffs say that by a private partition in the yeas 1915, Shaikh Majidur Rahman transferred his interest in favour of the plaintiffs. But he had only a fractional share in the taluq and the transfer was not valid so far as the landlord was concerned without his special sanction. No sanction of the landlord is pleaded in this case. Therefore, ha is not bound to recognize the transfer or to register it. Even the receipt of money or rent from the transferee of a portion of a patni taluq will not have the effect of recognition of the transfer or splitting up of the tenure. Therefore, the plaintiffs have no right to question the validity of the sale or to urge that their interests in the tenure, if any, is not affected by the sale in execution of the certificate obtained by the zemindar for realization of his rent.

The learned Subordinate Judge has held that the plaintiffs failed to establish any fraud either in the preparation or issue of the certificate or the process required by law. There is absolutely no evidence on the record of any enmity between the plaintiffs and any of the defendants. The finding of the learned Subordinate Judge as to fraud has rot been seriously challenge in the present case. It is not disputed that the rents for which certificate was issued were due. A certificate, No. 318 of 1919-20 (Ex. J), was prepared and filed on the 27th November 1918 in the office of the Certificate Officer under the Bihar and Orissa Public Demands Recovery Act (IV of 1914). The notice of the certificate (Ex C) was served upon the certificate-judgment-debtors, Defendants Nos. 2 to 4 u/s 7 of the Act and a notice through post (Ex. D) was served upon and acknowledged by Defendant No. 4. Shaikh Majidur Rahman. On the 13th January 1920, Shaikh Majidur Rahman, one of the certificate-debtors, filed a petition (Ex. 2) stating that he had no connexion or concern with the patni taluq nor was it in his possession and that the patni taluq belonged to and was in possession of Abdul Gaffar, Abdul Jabbar, Abdul Wahab, Abdul Sammad and Mt. Nasiban and the Thakur defendants. In the petition he prayed that the certificate may be issued in the names of the above persons and that the certificate issued upon him may be can called, or that the said mahal be attached and pat to sale. The Manager Court of Wards, filed a petition consenting to the mahal being sold and did not insist upon proceeding against the person or other property of the judgment-debtors. The certificate officer ordered the sale of the mahal and directed a sale proclamation to issue: (vide order sheet Ex. 4). After some adjournments, at the instance of the Thakur defendants who made part payments from time to time as noted in the order sheet, ultimately 4th November 1920 was fixed for the sale and a sale proclamation was directed to be issued afresh for the balance of the amount due. The sale proclamation was duly served (vide Exs. B to B-4), and on the date fixed the sale was held and the property was knocked down in favour of the highest bidder, Sheobhanjan Lal, Defendant No. 5, for Rs. 7,000 (vide bid sheet Ex.) No objection was made within the time allowed by law and the sale was confirmed on the 4th January 1921. The purchaser obtained a sale certificate (Ex. L) on the 22nd January 1921 and delivery of possession of the property on the 21st February 1921 (Ex. K). The processes have been conclusively proved to have been duly served and affected. The Plaintiff No. 1 says that Yusuf is his law-agent and the witnesses on behalf of the defendant say that Yusuf was taking keen interest in the sale and the plaintiff used to go to Court is connexion with the sale. Therefore, the sale far from being fraudulent was held with the knowledge of the plaintiffs and they tried their best to purchase the property. The reason is not far to seek. They wanted to acquire the entire 16 annas interest in the property, but they failed. They did not appear in the certificate proceedings nor did they, pay the rent due from the tenure, but soon after the sale on the 3rd January lodged their plaint.

It has been strenuously contended on behalf of the plaintiffs that the petition of Defendant No. 4, dated the 22nd January 1921, was not legally disposed of. In the petition the Defendant No. 4, the certificate-debtor, stated that he had no concern with the property and that the certificate be issued in the names of the persons who passed the property and that the certificate issued in his name be cancelled. He further said that the mahal might be attached and put to sale. The Manager, Court of Wards, also consented to the mahal being sold. The certificate u/s 12 of the Bihar and Orissa Public Demands Recovery Act (Act IV of 1914) could be executed against both the person and property of the judgment-debtors. The objection of Defendant No. 4 was allowed in so far as exemption of his personal liability was asked for and the Court directed the property to be sold. Thus the petition was validly disposed off.

The learned advocate has also contended that the certificate covered rents for the period exceeding one year. Consequently the certificate demand cannot create a charge upon the property. It is difficult to appreciate this contention. His contention, if I have understood it aright, is that the rent due to the zamindar is the first charge upon the property u/s 11 of the regulation only when the periodical steps for realization of rent under the regulation are taken by the landlord. He says that the land lord has a right to relize his rent by the summary procedure prescribed in the regulation every six months and therefore if he allows his rent to fall into arrear for a period exceeding one year, he loses the benefit of Section 11 which makes the rent the first charge on the property. Thus, upon this contention, it is urged that the right, title and interest only of the certificate-debtors passed by the sale held in execution of the certificate under the Public Demands Recovery Act and hence the plaintiffs'' right in the property is not affected. There does not seem to be any force in his contention. The Patni Regulation gives to the zemindar the right to relize the rent by a summary procedure and that summary procedure is restricted only to periodical rents. But the zemindar is not, bound to realize his rent every six months. He can wait for a longer period, and if he does wait for a longer period he can proceed under the general law for the realization of his rent. Section 195(e) of the Bengal Tenancy Act says that the Bengal Tenancy Act would not apply to enactments relating to Patni tenure in so far as it relates to those tenures. Where the Patni law is silent, the provisions of the General Rent Law would apply. This has been settled by authorities. The Patni law is silent as to the realization of rent beyond one year and, therefore, the zamindar is entitled to bring his suit under the ordinary rent law.

It is noticeable that the decree for the rent due from the Patni taluq in the case of Rameshwar Singh Bahadur Vs. Mt. Rajo Chowdhrain, was obtained under the Rent Law (VIII of 1859) and the sale in execution of that decree took place under that law and not under the Patni Regulations. It was held there that the provisions of the Patni Regulations did apply and that the effect of the sale was to destroy all encumbrances including the darpatni created by the patnidar. In the case of Kumar Satya Sankar Ghosal Bahadur v. Mon Mohan Guha Roy AIR 1918 Cal 265, Chatterji, J., held that the Patni Regulation does not take away the right of the zemindar to proceed in the ordinary way under the general law to recover arrears of rent: it only gives him an additional right to recover rent by a summary process of sale which is restricted to the recovery of rent for only one year. Similar was the view taken in an earlier case of Durga Prozad Bandopadhya v. Brindaban Roy (1892) 19 Cal 504. Therefore this contention is overruled.

It would seem further that the plaintiffs'' suit is barred by the provisions of Section 46 of the Public Demands Recovery Act. The plaintiffs based their title upon the purchase of the tenure in 1909 at a sale held in execution of a rent decree by their step brother Defendant No. 4 who subsequently gave away eight annas share of it to the old holders thereof, Defendants Nos. 2 to 4, and retained the eight annas in his own name. Defendant No. 4 acquired the property for himself as well as for the plaintiffs. Therefore Defendant No. 4 was a benamidar of the tenure to the extent of the interest of the plaintiffs therein. In 1915 the plaintiffs say that Defendant |No. 4 abandoned his interest and gave the entire eight annas, share to the plaintiffs; in other words, by a private arrangement or exchange in the partition of family properties, the plaintiffs acquired the interest of Defendant No. 4. They were thus the representatives of Defendant No. 4 and as such their suit is barred u/s 46 unless upon the ground of fraud which is not established in the present case, and as representatives they are bound by the decree made against Defendant No. 4: vide the case of Ishan Chandra Sarkar v. Beni Madhab Sarkar (1897) 24 Cal 62. The case in Kali Sundari Debt v. Dharani Kanta Lahiri [1906] 83 Cal 279 is exactly on all fours with the present case. In that case the purchaser had a money decree, but he did not get his name registered in the landlord''s serishta and he was held to be a representative of the judgment-debtors within the meaning of Section 244 of the CPC and was held to be bound by the subsequent decree for arrears of rent against the registered patnidar and the sale held in execution of such a decree. Again, in the aforesaid Privy Council case of Rameshwar Singh Bahadur Vs. Mt. Rajo Chowdhrain, , at one stage of the litigation it was held by the Principal Sadr Ameen that the zamindars were entitled to sue the patnidar whose name was registered ignoring the right of a person claiming to have beneficial right in the property and the patnidar being only a benamidar. The sale in that case took place in execution of the decree against the recorded tenant and such a sale was held to be valid and proper under the regulations irrespective of whether the recorded patnidar was the benamidar or not. The point, however, did not directly arise in that case, but there is no doubt that the plaintiffs-are bound by the sale in execution of the decree against Defendant No. 4 who was the recorded tenant, and who represented them so far as the zemindar is concerned even if he was a benamidar for them. Therefore whether Defendant No. 4 is a benamidar of the plaintiffs or he transferred his interest to them by means of private arrangement the plaintiffs are bound by the sale and their interest, if any, passed by it. In this case the sale having been held properly under the Public Demands Recovery Act, the tenure passed to the purchaser and not the right, title or interest of the judgment debtors (vide Clause 3 of Section 26 of the Act). Thus, even if the plaintiffs had any interest in the estate it passed by the sale held under the Public Demands. Recovery Act.

The result is that the appeal is dismissed with costs to the defendants who have entered appearance in this Court and contested the appeal. The defendants who did not appear in this Court will not get any costs.

The cross-objection has not been pressed at the time of the arguments and is, therefore, dismissed.