Gopendranath Das, J.
1. This appeal is at the instance of the plaintiffs. The plaintiffs brought this suit for declaration of title and for recovery of possession on the allegation that the disputed lands appertained to a jama of Es, 7-8-0 which was held by one Keramatulla under Gouriprosad Roy and Hariprosad Roy; that Gouriprosad Roy and Hariprosad Roy owned this superior interest in tenancy right under the Maharaja of Cossimbazar at a rent of Rs. 198-8-0. The plaintiffs' allegation further was that the tenancy right of the Roys was sold in execution of a decree for rent obtained by the Maharaja of Cossimbazar and was purchased by one Haricharan Karanjai and Charubala Debya. The plaintiffs further alleged that Keramatulla's jote which was held in occupancy right, was brought to sale in execution of a decree for money and was purchased by the plaintiffs on 8-5-1930. The plaintiffs as auction purchasers obtained delivery of possession on 6-3-1931, and remained in possession for some years till they were dispossessed by the defendants in March 1936.
2. Two sets of written statements were filed, one by the principal defendants and another by pro forma defendants 5 and 6. The defendants' case was that the lands appertained to the tenancy of Keramatulla which was an under-raiyati holding, and not an occupancy holding as alleged by the plaintiffs, that the jote of Keramatulla was held under the same Gouriprosad Roy and Hariprosad Roy, who, however, held their superior right not as appertaining to the tenancy of Rs. 198-8-0 as alleged by the plaintiffs but as appertaining to a tenancy of Rs. 54 held by them under one Rajani Bakshi. The defence further was that this superior right of the Roys was sold and auction-purchased by Rajani Bakshi, that the tenancy of Rs. 7-8-0 was thereafter surrendered and the lands in suit were settled with defendants 6 and 7. The defendants, accordingly alleged that the title to the lands lay with them and not with the plaintiff. The defendants further pleaded that the under-raiyati of Keramatulla being nontransferable, the plaintiff did not get any title by the purchase, as against the defendants who are not the judgment-debtors in that execution case at which the plaintiff purchased, and that as such the plaintiffs could not get a declaration of their title or recover possession from the defendants. In the course of the trial, the plaintiff wanted to amend the plaint by saying that the interest of Keramatulla was held under the Roys who in their turn held not under the Maharaja of Cossimbazar but under Eajani Bakshi as allged by the defenants. This amendment was, however, disallowed by the Munsif. The case then came on for trial and the Munsif held that the defendants are trespassers and that though the plaintiff had made out his case of purchase in execution of a decree for money as alleged in the plaint but as the interest of Keramatulla was that of an under-raiyat the plaintiff acquired no title which could be declared in this suit. The suit was accordingly dismissed by the Munsif. The plaintiff preferred an appeal. The lower appellate Court has concurred with the trial Court in holding that the defendants' story of surrender and settlement, was not true, that the defendants had no title and that the plaintiff had purchased the jotes of Keramatulla and thereafter obtained recognition from Hari Charan Karanjai and Charubala Debya. The lower appellate Court also concur-red with the trial Court in holding that the interest of Keramatulla was that of an under-raiyati which was non-transferable without the consent of the landlords; such consent not being alleged or proved the plaintiff cannot get a declaration of title as prayed for. The plaintiff has accordingly preferred this appeal.
3. Mr. Sudhansu Bhusan Sen, who appears in support of the appeal has argued that the effect of Section 48F, Ben. Ten. Act which was placed on the Statute book by the Amending Act & [IV] B.C. of 1928 is not to render a purchase at a sale in execution of a decree for money of the interest of an under-raiyat entirely void. His argument is that such a purchase is good as against the whole world and the only person who can object is the landlord, and as in this case the landlords have not been proved to dissent from the transfer there is no bar to the plaintiff having a declaration of title as prayed for. In my opinion, this contention is correct. Section 48F, Ben. Ten. Act lays down:
The holding of an under-raiyat shall descend in the same manner as other immovable property, but, subject to the provisions of Sub-Section (2) of Section 48G, shall not be transferable except with the consent of the landlord.
In my opinion, a sale of an under-raiyati holding is not a nullity but is voidable. Such a sale may be set aside at the instance of the landlord or the landlords who do not consent to the transfer. The object of Section 48F, Ben. Ten. Act was to place an under-raiyati on the same footing as occupancy raiyat as it was before the Amending Act of 1928. Before the Amending Act of 1928, it was settled law that apart from custom an occupancy right could not be transferred except with the consent of the landlords. The question arose as to the effect of a transfer, either voluntary or involuntary, of an occupancy holding without the consent of the landlord. It was decided by the Full Bench in Dayamoyi v. Ananda Mohan Roy 2 A.I.R. 1915 Cal. 242 that a transfer for value of an occupancy holding without the requisite consent on the part of the landlord as also an involuntary alienation of an occupancy holding ?without the consent of the landlord was operative against the whole world with the exception of the landlord alone. This view was re-affirmed by the Special Bench in Chandra Binode v. Ala Bux 8 A.I.R. 1921 Cal. 15. The only person, therefore, who could object to an alienation of a non-transferable occupancy holding without the landlord's consent was the landlord. The question whether a transferee of a non-transferable occupancy holding could get an ejectment against a trespasser arose in Behari Lal v. Sindhu Bala Dasi 5 A.I.R. 1918 Cal. 615. In that case, it was held that a donee of a non-transferable occupancy holding was entitled to maintain an ejectment against a trespasser. It may be pointed out that the plaintiff can get a decree for ejectment where the transfer on which he bases his title is not void but is merely voidable. Reference may be made to the case in Hara Chandra v. Mohananda Mondal : AIR1928Cal299 in support of this proposition. In my view, therefore, the contention put forward by the appellants that the present plaintiff who is a purchaser of a non-transferable under-raiyati holding after the amending Act 4 [IV] B.C. of 1928 is entitled to maintain an ejectment against the defendants who are mere trespassers.
4. Mr. Pal who appears in support of the defendants, apart from contesting the above proposition, tried to support the decree on the ground that as the plaintiffs' prayer for amendment of the plaint had been negatived the plaintiff could get a decree for declaration of title on the unamended plaint. This contention was put forward on behalf of the defendants before the Munsif and in my opinion was rightly negatived on the ground to be found in the judgment of that Court. The other contention put forward by Mr. Pal was that as the landlord is no party to these proceedings no declaration can be made under Section 42, Specific Belief Act. In my opinion, this contention is without any substance. The defendants did not allege that the landlord was a necessary party to the suit. There is no cause of action so far as the landlord is concerned and, in my opinion, there is no bar to the Court granting a declaration of the plaintiff's title in the absence of the landlord. Equally unsubstantial is the plea taken by Mr. Pal that the plaintiff has no legal character and as such cannot have a declaration under Section 42, Specific Relief Act. As I have said above, the plaintiff's title is good against the whole world with the exception of the landlord alone; as such he has a legal character which the Court can declare.
5. In my opinion this appeal ought to be allowed, the judgments and decrees of both the Courts below set aside and the plaintiffs' suit decreed with costs in all the Courts.