BHATA RAM DAS Vs. KSHITISH CHANDRA LAHIRI

JUDGEMENT

(1.) These two appeals, Nos. 2548 of 1913 and 3830 of 1918, may be heard together. The first appeal refers to a purchase of a part of a non-transferable holding and the second to a purchase of the whole of such holding. The landlord brought a suit for rent against the recorded tenants, the purchasers not having been recognised by him. In that suit he brought the property to sale, purchased it and took possession. Thereupon the purchasers of the part and of the whole of the holdings respectively brought two suits to recover possession, and the Court below held that the purchasers of a non-transferable holding were not entitled to maintain these suits to set aside the sale on the ground of fraud.

(2.) In the first case the learned Vakil for the appellant relied upon the Full Bench decision of Dayamoyi v. Ananda Mohan Roy Chowdkuri 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L. 52 : 42 C. 172, which held that the transferee of a holding not transferable by custom can, by a suit, recover possession from the landlord who had forcibly dispossessed him." That may be so; but that is not the case before us. If the tenant is upon the land, then his possession protects the party to whom he has transferred a portion of his interest. That is not the case here. The tenant is no longer on the land after the holding has been sold, and what was the property of the original tenant is now the property of the landlord. Now nothing in the decision of the Full Bench shows that the Court below was not correct in holding that the purchasers of a non- transferable holding can, after the holding has been sold and the original tenant is no longer on the land, he a party to a suit for recovery of possession from the landlord. So I hold that this appeal fails.

(3.) As regards the second appeal, an argument was based on the ground of estoppel. It is said that after sale, the appellant made a deposit which was withdrawn by the landlord, and he cannot now say that the transferee was not recognised by him. There may he circumstances under which such estoppel may arise. Now, what we have to do is to look at the facts, and we find, as established by the first Court s judgment, that when the appellant sought to make the deposit, the landlord objected to its being made on the ground that the appellant had no locus standi to make the deposit. That objection was overruled by the Court below and the landlord withdrew the money inasmuch as the Court allowed the deposit. To my mind it appears that this does not amount to an estoppel, since the landlord objected and acted in accordance with the order of the Court. There was no duty on the landlord to proceed by way of an appeal to hove it established that the transferee has no right to make the deposit.