1. The plaintiff-respondent on the 20th November 1908 purchased a nontransferable occupancy holding in execution of a money-decree against one Melon Sheikh, (which was executed after his death against his heirs); but the plaintiff was not recognised as tenant by the landlord. He sued to recover possession of the holding from the defendant who was in possession. The latter set up a purchase in the year 1909 from one of the heirs of Melon, namely, his widow Kulo Bibi who is alleged to have obtained the entire holding from Melon by a deed of gift. He also pleaded that he was accepted as tenant by the landlord. The Court below gave a decree to the plaintiff and the defendant has appealed to this Court.
2. Now, an involuntary transfer of an occupancy holding not transferable without the consent of the landlord, is operative as against the raiyat where the raiyat with knowledge of the sale fails or omits, to have the sale set aside. As there was no finding whether Melon's widow had any knowledge of the sale in execution of which the holding was sold, the case was remanded for a finding on that point. The Court below has now found that she had no knowledge of the sale.
3. It is contended on behalf of the respondent that although the sale was not operative as against the widow of Melon, by reason of her not having any knowledge of the sale, the tenant's interests did not pass to the defendant because the heba under which Melon's widow is alleged to have acquired a right to the entire holding, is found to have been a paper transaction and Melon had other heirs also: and that, if the interests of the tenants did not pass to the defendant, the defendant did not acquire any title by recognition by the landlord. But it is the plaintiff's own case that the heirs of Melon had abandoned the land, at the time of his obtaining delivery of symbolical possession. That being so and the defendant having been accepted and treated by the landlord as the tenant, which in the circumstances of the present case amounted to a settlement, the former acquired a right to the holding. In this view it is unnecessary to consider the effect of the tenant's heirs not taking steps to have the sale set aside after they had knowledge thereof, which question, moreover, was not argued before us.
4. The appeal must, therefore, be allowed and the suit dismissed with costs in all Courts.