N.G. Chandavarkar, Kt., J.
1. The appellant relies upon a purchase at an execution sale of the rights of occupancy in a Khoti village. The lower appellate Court has held that the purchase is inoperative and conferred no rights upon the appellant, because it did not satisfy the conditions required by the provisions of Section 9 of the Khoti Settlement Act (1 of 1880).
2. The argument in the Court below appears to have been this: the appellant relied upon the fact that the Khot had given his consent to the purchase ; and in proof of it he relied upon a Botkhat, in which there was an entry made by the Khoti Settlement Officer to the effect that the tenant's right was not transferable 'without the consent of the Khot'. The learned District Judge is of opinion that this entry, as to the consent of the Khot, is a mere surplus age, and cannot affect the rights of the parties. Under Section 9 the rights of occupancy tenants shall not be transferable. The words are wide enough to point to the intention of the Legislature that an occupancy tenant's right cannot be sold. That applies both to a private sale and a sale in execution of a decree : Dattatraya Ramchandra Patkar v. Nilu Bachaji Apradh (1898) P. J. 378. But there are two exceptions created to this bar, first, where the right of transfer is created by custom under the conditions specified in Section 9 ; and, secondly, where the Khot has in granting a lease conferred upon the lessee the right of occupancy at the time of creating the tenancy.
3. Now, in the present case neither of these was alleged. What was relied upon was merely that after the occupancy right had been created the Khot consented to the transfer of his rights by the tenant. But such consent has no place whatever in Section 9; and therefore, the learned District Judge was right in holding that the defendant's purchase must be treated as illegal and void. This view is in accordance with two decisions of this Court, one of a Division Bench consisting of Batchelor and Davar JJ. in Vasudev Ganesh Thakur v. Laxman Balaji Patil Unreported S. A. No. 471 of 1909, decided on 8th March 1910, and the other in Govind Krishnaji Tirvadekar v. Balaji Balaram Gavayi Unreported S. A. No. 254 of 1906, decided on the 13th August 1908.
4. It was urged, however, by the learned Counsel for the appellant that the point itself as to the invalidity of the defendant's purchase was raised for the first time in appeal, and that the lower appellate Court ought not to have dealt with it without giving the appellant an opportunity to meet it. But assuming that the point had not been raised in the Court of first instance, it was a point which the Court was bound to notice suo motu, because the moment the defendant relied for his title upon his purchase of the occupancy rights, the question arose whether the right was valid according to law. The defendant could not merely rely upon the fact of his purchase; he had also to show that under the Khoti Act it was a purchase recognized as valid.
5. For these reasons the decree must be confirmed with costs.