KANDARPA NARAIN MAZUMDAR Vs. BINDU BASHINI DASI

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiffs for recovery of khas possession of certain lands from the defendants on the allegation that the tenant thereof had abandoned the tenancy and made a transfer of the same in favour of the defendants. It was alleged that the tenancy in suit was a non-transferable occupancy holding. The suit was resisted on the ground that the tenancy in question was a mokurari one and further that, when in execution of a decree for rent which had previously been obtained by the plaintiffs as against the then tenant the holding was put up to sale, the defendants made a deposit under the provisions of Section 170, Clause (3), Ben. Ten. Act and the landlords, that is to say, the plaintiffs, withdrew the same. The suit was decreed by the trial Court but, on an appeal being preferred by the defendants, the learned District Judge has dismissed the suit. The plaintiffs have thereupon preferred this second appeal.

(2.) Now, the facts upon which the learned District Judge has held that the plaintiffs are estopped from questioning the validity of the transfer that was made by the previous tenant in favour of the defendants are these : The decree that had been previously obtained by the plaintiffs as against the previous tenant was put into execution and, after the attachment and the sale proclamation were issued, the defendants applied for permission to deposit the decretal amount under Section 170, Ben. Ten. Act, alleging that they had purchased the holding, and, in support of the application that they made on that occasion, they filed an affidavit and the kobala under which they alleged they had made the purchase. The Munsif, in whose Court the execution case was pending, permitted the defendants to make the deposit, but did not issue any notice on the plaintiffs and eventually passed the following order: Challan received. Money deposited. Decree-holders are directed to withdraw the money. Case disposed of on full satisfaction.

(3.) This order was passed on 20 December 1917 and thereafter, on 17 January 1918, an application being made on behalf of the plaintiffs, a payment order was made in their favour and the amount deposited as aforesaid was withdrawn by the plaintiffs. What is contended before us on behalf of the plaintiffs-appellants is that, inasmuch as the order allowing the deposit to be made was passed without notice to the plaintiffs and the money was withdrawn by the plaintiffs pleader under circumstances which would not definitely show that, in point of fact, the plaintiffs had knowledge of the fact that the money had been deposited by a person who had claimed to have a right in the holding, the plaintiffs are not estopped from questioning the validity of the purchase. The learned vakil for the appellants has sought to distinguish some of the decisions upon which the judgment of the learned District Judge on this point is based. It is true that the facts of some of the cases on which the learned District Judge has relied are distinguishable from those of the present case but, after all, it seems to be perfectly clear that when the plaintiffs withdrew the money that had been deposited, they were bound to make enquiries as to the circumstances under which it came to be deposited in Court and, inasmuch as they did, in point of fact, withdraw the money, it is to be presumed that they did so with knowledge of those circumstances. It does not very much matter that no notice was given to the plaintiffs before any order was passed allowing the deposit to be made. As has been pointed out by this Court in the case of Gadadhar V/s. Midnapur Zemindary Co. Ltd. [1918] 27 C.L.J. 335, in which case also it was not clear upon the materials on the record whether any notice was given to the decree-holder of the fact that an application had been made for permission to make the deposit when the decree-holders found that the money had been deposited by one who asserted a title by purchase, they should have made enquiries and, if they had done so, they would have discovered every thing. In that case, the decree- holders without adopting that course withdrew the amount and, upon that it was held by this Court that, in those circumstances, they could not be permitted urge that the transfer was inoperative. The circumstances of that case are very similar to those of the case before us and I am of opinion that, in view of those circumstances, it must be held in the present case that the plaintiff's are no longer competent to question the validity of the transfer. There is one case of this Court to which, our attention has been specially drawn namely, the ease of Suck Chand Das V/s. Girdhari Das A.I.R. 1926 Cal. 1215. In the judgment of Suhrawardy, J., in that case, there are certain observations, which apparently support some of the contentions that have been urged on behalf of the appellants in this appeal. But when the facts of that case are examined closely it would appear that the money that was withdrawn by the landlord was deposited by certain persons who were found to have acquired no interest in the tenancy at all and were strangers to the holding. The observations, therefore, that are to be found in that case must be taken to be limited to the particular circumstances of that case.