RE FAZOO MIA Vs. SULTAN AHMED CHOUDHURY

JUDGEMENT

(1.) This is an application by a decree-holder who is at the same time the auction-purchaser of a nontransferable occupancy holding and the landlord. The landlord obtained a rent decree and has purchased the holding at the execution sale. Thereupon the opposite party, who claimed to have purchased the entire holding from the tenant, but who has been found by both the Courts below to have purchased a part only of the holding from the tenant, seeks to exercise the right given by Rule 89, Order 21, Civil P.C. The Courts below have both held that he is entitled to exercise that right and the landlord applies in revision to us to hold that the purchase of a part of a noon-transferable occupancy holding is not within the language of Rule 89. The matter is a very important one and it is difficult not to have recourse to a comparison with Section 170, Bengal Tenancy Act.

(2.) At first the course of decisions under Section 170 appears to have tended in favour of a purchaser of the non-transferable jote, but it is now settled by decisions that such a purchaser does not come within the description in Sub-section (3), Section 170 of any person having in the tenure or holding any interest voidable on the sale.

(3.) Now the language of that section is different from the language of Rule 89, which speaks of a person either owning such property or holding an interest therein by virtue of a title acquired before such sale.