Dawson-Miller, C.J.This is an appeal on behalf of the plaintiffs from a decision of the District Judge of Bhagalpur reversing the decree of the Subordinate Judge, and dismissing the plaintiffs suit.

2. The suit was instituted on 28th March 1923, claiming a declaration of their title to and delivery of possession of a holding in mauza Bosbhiti. It appears that in the year 1899 Musharu Gope and Roudi Gope executed a mortgage of their kaimi jote lands in Mauza Bosbhiti in favour of Tofa Lal Pathak whose interest since his death has devolved on the plaintiffs. In March 1912, Tofa Lal Pathak brought a suit against the Gopes to enforce the mortgage, and on 9th October in the same year obtained a decree which was made absolute on 3rd June 1913. On 27th October 1924 the holding was sold in execution of the mortgage-decree and purchased by the mortgagee. On 3rd August 1915, the sale was set aside in proceedings under Order 21, Rule 90, Civil P.C., at the instance of the mortgagors.

3. A fresh application for execution was filed, and on 19th July 1919 the holding was again sold in execution of the mortgage-decree and it was again purchased by the plaintiffs, the representatives-in-interest of Tofa Lal. On 26th February 1920, the plaintiffs obtained delivery of possession from the Court. At that time Shibram Singh and others, the defendants first party, were in possession of the holding having been inducted on the land as tenants by the proprietors in circumstances hereinafter mentioned. These defendants who may be referred to as the Singh defendants were, however ousted by the plaintiffs in pursuance of the delivery of possession awarded them by the Court as purchasers in the execution proceedings in their mortgage suit. The Singh defendants then instituted proceedings under Order 21, Rule 100, Civil P.C., against the plaintiffs, in which they were successful, and on 16th May 1921 the plaintiffs were dispossessed. The plaintiffs have accordingly brought the present suit to recover possession of the holding impleading, in addition to the Singh defendants, the proprietors of the village as second party defendants Gonar Gope and another, the representatives of the original mortgagors, as third party defendants and Chatku Pathak and others, members of the plaintiffs family who have separated from them after partition, as fourth party defendants.

4. In order to understand the situation which now arises it is necessary to go back to the year 1911 and trace the history of the litigation which took place in respect to this holding. It appears that Kumar Rajendra Narain Singh, and Babu Tejendra Narain Singh, who are now represented by the second party defendants, were the maliks of the village in which the holding is situated, the former having a 9 annas share and the latter a 7 annas share in the proprietary interest, and it seems that they made separate collections of rent from the tenants. In September 1911, and on the same day, each of the proprietors brought a separate suit for his proportion of the rent against the Gopes who were then in occupation of the holding as tenants. These suits were framed u/s 148-A, Ben. Ten. Act, and each of the landlords obtained a decree for rent against the tenants, the 9 annas landlord on 4th December 1911, and the 7 annas landlord on 27th January 1912. The 7 annas landlord, in execution of his decree, put up the holding for sale and himself purchased it on 5th April 1914.

5. A similar sale took place in execution of the decree obtained by the 9 annas landlord who also purchased the property on 6th May 1915, but with this transaction we are not now concerned. Neither of the landlords obtained immediate possession, but on 15th February 1917 possession was delivered to the 7 annas proprietor who then held the land as a joint proprietor under the provisions of Section 22, Sub-section (2), Ben. Ten. Act, paying rent to his co-proprietor, the 9 annas shareholder. On 5th February 1919 the 7 aunas proprietor settled the holding with the Singh defendants who entered into possession as raiyats u/s 22, Ben. Ten. Act. Subsequently, in February 1920, as already stated, the Singhs were dispossessed by the plaintiffs, but again recovered possession in the proceedings under Order 21, Rule 100 above referred to.

6. It may here be stated that it has been found as a fact that the holding in question is a nontransferable occupancy holding, and the main question for determination in this appeal is whether the mortgagees of the original occupancy tenants can recover possession of the holding against those, holding under the landlords and without the consent of the latter.

7. Various issues were raised at the trial with three of which only are we concerned in this appeal:

(1) Whether, as the District Judge on appeal held, the suit is barred by Section 11, Civil P.C., on the ground that the lands now claimed were found in the previous proceedings under Order 21, Rule 90, to which I have referred, not to be identical with the mortgage property and that this decision operates as res judicata and bars the plaintiffs claim.

(2) Whether the decree in the rent suit obtained by the 7 annas proprietor was a rent decree u/s 148-A, Ben. Ten. Act, or merely a money-decree, and, if a rent decree, whether the sale in pursuance thereof passed more than the right, title and interest of the judgment-debtors by reason of the fact that notice, of the sale was not served upon the cosharer proprietor as provided in Section 158-B, Ben. Ten. Act, and,

(3) Whether having regard to the fact that the landlord purchase did not take steps u/s 167, Ben. Ten. Act, to annul incumbrances, the mortgage charge upon the property must be regarded as still subsisting and conferring on the plaintiffs a right of possession.

8. In approaching the consideration of these questions and considering how far they affect the rights of the parties in this suit certain proved or admitted facts must be borne in mind. First, the holding in question is a nontransferable holding and the original occupancy holders, the Gopes, could confer no title upon the plaintiffs as raiyats without the consent of the landlord. Secondly, the landlords have never consented to accept the plaintiffs as tenants of the holding, thirdly, the plaintiffs are now claiming possession as raiyats.

9. Both the Courts below found that the lands in suit were identical with the lands mortgaged to the plaintiffs, but whereas the trial Court considered that the proceedings between the plaintiffs and the Gopes under Order 21, Rule 90, in which it was found otherwise, did not act as res judicata against the plaintiffs in the present suit, the District Judge on appeal took a different view. The trial Court appears to have been of opinion that the decree obtained in the rent suit by the 7 annas proprietor was not properly framed u/s 148-A, Ben. Ten. Act and, further, held that as no proceedings had been taken u/s 167 of that Act, to annul the incumbrance the plaintiffs lien remained and took priority over the rights of the landlord. The District Judge on appeal referred to the plaint in the rent suit and found that it complied with the requirements of Section 148-A and that the decree obtained in that suit was a rent decree. He further found that, although no notice was served u/s 158-B on the cosharer landlord, the latter had acquiesced in the sale and must be taken to have waived his right to such notice. In support of this proposition he relied on the case of Rajani Kanta Ghose and Others Vs. Sheikh Rahman Gazi and Others, . He further held that, although no proceedings had been taken u/s 167, Ben. Ten. Act to annul the plaintiffs incumbrance no annulment was necessary in the case of nontransferable occupancy holding. For this proposition he relied upon Surat Chowdhury v. Murlidhar [1918] 4 Pat. L.J. 362.

10. In argument before us it was no longer denied on behalf of the appellants that the decree obtained by the 7-annas proprietor was a rent decree. In fact the form of the plaint in that suit makes it quite clear that it complied with the provisions of the statute. But it was contended that the sale in execution thereof conferred upon the landlord purchaser no more than the right, title and interest of the judgment-debtor because no notice was served upon the cosharer landlord as required by Section 158-B, Sub-section (2) of the Act. It was also contended, on behalf of the appellants that the failure to take proper proceedings to annul the incumbrance gave priority to that incumbrance over the rights of the landlord even assuming that he purchased under a rent-decree. On the question of res judicata it was contended that the point was not substantially in issue in the previous proceedings in 1915; that these proceedings were not between the same parties or their representatives; and that, as no objection was taken at the sale to the plaintiffs in 1917, objection could not be taken now on the principle laid down in the case of Mungul Pershad Dichit v. Girija Kant Lahiri [1882] 8 Cal. 51; and that, until the sale was set aside it could not be questioned.

11. It is unnecessary, in my opinion, to determine the question of res judicata as, even if we should decide this in favour of the appellants, we think they must fail upon other points in the case. Nor indeed could we finally determine this question without having before us more detailed information as to the proceedings under Order 21, Rule 90 than we have at present.

12. With regard to the second point I have already stated that it is conceded that the decree was a rent-decree. Nor do I consider that in the circumstances the failure to serve notice u/s 158-B involved the consequence that the purchaser at such a sale was in the position of an ordinary purchaser under a money-decree. The obligation to serve notice upon the cosharer landlord is enacted to protect his interest. In such a case the person upon whom it is required to serve notice may, at his option, waive the necessity for such notice. It is found by the District Judge in this case that he did waive the right to such notice and recognized the purchase of the 7-annas landlord, accepting from him his share of the rent. The question was considered in the case of Rajani Kanta Ghose and Others Vs. Sheikh Rahman Gazi and Others, , where it was held that a cosharer landlord might waive his right to notice under the section in question notwithstanding the decision of the Judicial Committee in Raghunath Das v. Sunder Das Khetri AIR 1914 P.C. 129 . In my opinion the case of Rajani Kanta Ghose and Others Vs. Sheikh Rahman Gazi and Others, was rightly decided.

13. It remains to consider the third point, namely the effect of the failure to annul the mortgage incumbrance under the provisions of Section 167, Ben Ten. Act. Admittedly the provisions of that section were not complied with, but, although notice required under the section is framed in language which applies generally to purchasers at sales in execution of rent-decrees, and incumbrances can only be annulled in the manner prescribed in the section, different considerations arise in a case like the present where the landlord is himself the purchaser and the incumbrancer is the mortgagee of a nontransferable occupancy holding.

14. The section must be given effect to in the light of the other sections and of the right of the landlord to refuse to recognize a tenant not of his own choosing. Regarded merely as a purchaser he would be barred by the existing incumbrances unless they were annulled. But regarded as a landlord he has the right to refuse to recognize a transferee of the original occupier as his tenant. The plaintiffs are none the less transferees though they acquired under a mortgage lien granted by the original tenants. By Section 65 the rent forms a first charge on the holding and takes priority over the mortgage lien. A landlord holding a decree for rent can sell the property and purchase it himself. If he is a cosharer proprietor, as in this case, he acquires the peculiar interest conferred by Sub-section (2), Section 22, and may hold the land on paying to his co-proprietors their share of rent, and may transfer his rights so acquired to a third person who thereupon becomes a raiyat. What then is to happen if the holding is subject to a mortgage granted by the defaulting tenant Can the mortgagee who has obtained a decree on his mortgage and purchased the property in execution claim possession from the landlord or the raiyat settled on the land by the landlord Clearly not, without the landlords consent. He has no right to hold the land as a raiyat against the will of the landlord, and his incumbrance, although never formally annulled; and although still subsisting for what it is worth, is a barren right against the landlord when he seeks to enforce it by taking possession of the property.

15. It is, therefore, of no consequence that the landlord did not seek to annul the mortgage, for the mortgagee could not step into the shoes of the original tenants and acquire a raiyati interest against the landlords will. To hold otherwise would be, in effect, to allow the tenant of a nontransferable holding to transfer in a roundabout way to a stranger, without the landlords consent, by executing a mortgage in favour of the stranger and allowing the holding to be sold in execution of a mortgage-decree. Such a sale can give him no right against the landlord without the latters consent or entitle him to oust the landlord or the tenant claiming under him.

16. It must be remembered that the plaintiffs in this case are claiming actual possession as purchasers of the holding. They are not seeking to redeem the landlord by payment of the rent charge u/s 73, T.P. Act, or to share in the surplus proceeds of the rent sale as second mortgagees. Such remedies may have been open to them in proceedings properly framed for that purpose. But the present suit is not one of such a nature. Even had proceedings been taken u/s 73, I apprehend that when the plaintiffs came to take possession they would still have been in a difficulty unless the landlord consented to accept them as tenants. The view just expressed is in accordance with the decision of this Court in Surat Lal Chowdhury v. Murlidhar [1918] 4 Pat. L.J. 362. The truth would appear to be that the transferee of a nontransferable occupancy holding, whether he takes by kabala from the original tenant, or whether he acquires the property by purchase under a mortgage-decree, has a very precarious right, for he cannot force himself upon the landlord as a tenant without the latters consent.

17. For these reasons I think that this appeal must be dismissed with costs.

Adami, J.

18. I agree.