PROSUNNO KUMAR MIDDAR Vs. BAMA CHURN MONDAL

JUDGEMENT

(1.) THE present appeal is against an order passed by the lower appellate Court confirming an order made by the Court of first instance on an application made to that Court under the provisions of Secs.311 and 244, C. P. C, to set aside a sale. THE present appellants are the original decree-holders and their case is as follows:-THEre was a holding which had been settled with one Potai Mondal under the present appellants. On the 5 September 1906, the present appellants got a decree for arrears of rent against Potai Mondal and, in execution of the same, sold up and purchased the holding on the 26 February 1907. On the 11 April 1907, Bama Churn Mondal applied under Secs.311 and 244, C. P. C, to have the sale set aside. He claimed to be entitled to make the application because he had purchased the holding from Potai Mondal in November 1904. THE case for the decree-holders was that Potai Mondal's rights in the holding were not transferable by custom or usage and, therefore, Bama Churn, by his purchase, acquired no interest in the holding and that Bama Churn was, therefore, not in the position of a person whose immovable property had been sold nor could he be regarded as a representative in interest of the original judgment-debtor, Potai Mondal. Both the lower Courts refused to go into the question whether the holding was transferable by custom or usage or not but they held, on the authority of certain rulings of this Court which they quoted in their judgments, that that question was of no importance and that the applicant by proving his purchase alone was entitled to make the application under Secs.311 and 244, C.P.C. We are of opinion that both the lower Courts erred in the view which they have taken of the effect of the rulings which they have referred to. THE law, as applicable to a case like the present, has been dealt with by this Court in the case of Srimati Nissa Bibi V/s. Radha Kishore Manikya 11 C.W.N. 312. THE interest claimed in that case was that of a mortgagee but the principle laid down is, in our opinion, equally applicable to the case of a purchaser of a holding which is alleged to be non-transferable. We agree in the view of the law which the learned Judges deciding the case above alluded to expressed in the following passage:-" If such interest was not transferable either according to law, custom or local usage, then we are of opinion that the applicant could not rightly be regarded as a representative in the proper sense of the word and as falling within the purview of Section 244, C.P.C." In the present case, we think that what the lower Courts sought first to have determined was whether the applicant by his purchase had acquired an interest in the property which was sold which would have entitled him to come under the provisions of Section 311 as a person whose immovable property had been sold or which would have entitled him to come under Section 244 as a representative of the judgment-debtor. If by his purchase, the applicant acquired no title, then it seems to us that it would be impossible for the Court to hold that he was either a person whose immovable property had been sold because, under his purchase, he acquired no legal title to the property or as a person representing the real proprietor of the holding because, under the purchase, no interest passed to him from the original proprietor. We must, therefore, set aside the judgment and order of the lower appellate Court and remand the case to that Court in order that it may first determine the question whether or not the holding in question was transferable by custom or local usage.

(2.) THE learned pleader for the respondent has argued that since his purchase his client has been recognised by the landlords as a tenant and he suggests that such recognition must be taken to have been made when the landlords on previous occasions drew out the money which he had deposited in order to prevent the holding from being sold. It will be for the learned Judge of the lower appellate Court, in deciding the appeal, also, to consider whether there has been such action on the part of the decree-holders, the present appellants, since the purchase by the respondent of the holding, as to amount to a recongition on their part as landlords of the respondent as their tenant. If there has been such a recognition, then certainly, whether the holding be transferable or not, the judgment-debtor has acquired an interest as a tenant in the property. We, therefore, decree the appeal, set aside the , order of the lower appellate Court and send the case back to that Court to be retried with due regard to the remarks made in this judgment. Should the Judge of the lower appellate. Court be of opinion that it is necessary to take further evidence from the parties in order to determine these questions, he may either take that evidence himself or remand the case, after framing proper issues, in order that that evidence may be taken by the Court of first instance and re-submitted to his Court. Costs will abide the result.