1. This Rule was issued calling on the opposite party to show cause why a certain order of the Munsif of the 11th March 1926, dismissing an application on the ground that it was not maintainable under the provisions of Order 21, Rule 100, Civil P.C., should not be set aside or varied on the ground that the petitioners were entitled to maintain the application on the facts set out in the Munsif's order. The facts are as follows:
The petitioners commenced a title suit impeaching a sale in which the landlord decree-holder had purchased the land and they asked for confirmation of their possession. In that suit the petitioners applied for an injunction restraing delivery of the land to the decree-holder. Owing to the laches of the clerks in the Munsif's office the injunction order was not shown to the clerk who issued the writ of possession, so the writ of possession was issued and symbolical possession was delivered to the decree-holder in due course. The decree-holder took actual possession, as he had received no notice of the injunction that had been passed. Thereupon the petitioners applied to the Munsif under the provision of Order 21, Rule 100, Civil P.C., asking that they should be restored to possession. The Munsif has found that the petitioners were in possession of the disputed land and property for many years and that the judgment-debtor against whom the opposite party bad obtained a rent decree ex parte had not been in possession for a long time.
2. The petitioners had obtained a transfer of the holding from the judgment-debtor some time previously. The Muusif then went on to hold that under the provisions of Order 21, Rule 100, the petitioners on the facts were entitled to recover possession as they had been in possession until the decree-holder obtained possession under the order to which I have referred. But the Munsif further held that in spite of this there were difficulties in the way of the petitioners as the holding according to the Munsif was a non-transferable occupancy holding, and the Munsif then held that the petitioners are representatives of the judgment-debtor and as such are not entitled to make the application under the provisions of Order 21, Rule 100, Civil P.C. Now the petitioners' case is that the holding is a mourasi mokarari holding. This question we cannot go into for the purposes of this Rule, and we must accept the Munsif's finding that the holding is a non-transferable occupancy holding for the purpose of the present application, Order 21, Rule 100, provides that where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property, the Court shall fix a day for investigating the matter, and Rule 101 provides that, when the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.
3. If therefore the Munsif was right in holding that the petitioners obtained title through the judgment-debtor then clearly they would not be entitled to maintain the application under the provisions of Order 21, Rule 100. But the holding was a non-transferable occupancy holding, or so we must take it to be for the purpose of this rule. The landlord has never consented to the transfer nor has he recognized the petitioners. Consequently the petitioners are trespassers so far as he is concerned and obtained no title by virtue of the transfer to them of the property by the original tenant. This being so it seems to me that they cannot be taken to be representatives of the judgment-debtors as they are merely trespassers and obtained no title from him. This being so it seems to me that they are entitled to maintain the application under the provisions of Order 21, Rule 100.
4. But the Munsif relied on a case to which we have been referred this morning, Panchratan Koeri v. Bam Sahay Singh  3 Pat. L.J. 579. The head note is as follows:
The purchaser of the whole or part of an occupancy holding not transferable by custom is a representative of the judgment-debtor and entitled to object under Section 47 to a sale. He is therefore not entitled to maintain proceeding, under Order 21, Rule 100.
5. The learned Judges in delivering their judgment referred to Dayamoyi's case  42 Cal. 172 in support of their decision. Now reference to Dayamoyi v. Ananda Mohan  42 Cal. 172 shows that the decision in that case referred not to the transfer of the whole of an occupancy holding but merely to a part, and one must read the first answer to the question propounded as an answer to a reference with regard to the transfer of a portion only of a holding and not to the transfer of a whole. Accordingly I feel some doubt as to the correctness of the decision in Panchratan Koeri v. Ram Sahay Singh  3 Pat. L.J. 579, and to the construction put upon Dayamoyi's case  42 Cal. 172 on which the decision was founded. The result therefore is that I think the Munsif was not entitled to rely on that case as an authority for refusing to exercise jurisdiction which he had under the provisions of Order 21, Rule 100.
6. Consequently for the reasons which I have indicated and on the facts and circumstances which I have stated the petitioners are entitled to order which they asked for in the circumstances here, stated unless we think we ought not to interfere at the present stage having regard to the fact that a suit has already been instituted in which the question will be decided and having regard to the fact that if there is a remedy by suit open, the Courts are 10th to interfere-under the provisions of Section 115, Civil P.C.; and we were referred by the learned-Government Pleader, who appeared to show cause, to the Civil Rule 540 of 1921 where the facts sire very similar to the facts now before us. Although no suit had there been instituted the Court refused to interfere under the provisions of Section 115 having regard to the fact that there was a remedy by suit. The present ease of course is a stronger case. Here a suit has been instituted and it might be said that accordingly we ought not; to interfere as the question, as I have already stated, will be ultimately decided in that suit. But we think we have got to bear in. mind the facts before us, namely, that the petitioners have been in possession far some 10 or 12 years by virtue of the transfer, that, but for the mistake which arose with regard to the injunction granted by the Munsif, their possession would have remained unimpaired until the suit was decided.
7. Consequently I think that we ought in this case to exercise the jurisdiction vested in us under the provisions of Section 115 and make the rule absolute. I am not unmindful of the fact, which was pressed upon us by the learned Government Pleader, that the result may be that the suit may now be discontinued, and the question never decided. But after all if that result does occur, I mean the discontinuance of the suit, it is open to the landlord himself to commence a suit to have the matter determined.
8. Under the circumstances which I have indicated we make the Rule absolute. The matter will go back to the Munsif in order that a formal order may be passed. The petitioners are entitled to costs of this rule.
9. I agree.