S.K. Ghose, J.
1. The circumstances which have given rise to this rule may shortly be stated thus : An occupancy holding was brought to sale in execution of a rent decree and auction, purchased by opposite party No. 1 who is not the decree-holder. The petitioner sought to have the sale set aside by making an application under Section 173 and Section 174, Ben. Ten. Act. That application has been rejected by the learned Munsif and an application for revision taken to the District Judge was also rejected. Hence this petition.
2. The petitioner's case is that he has purchased privately one of the plots comprised within the tenancy from one Rakhal Chandra Mandal, son of Manik Mandal. It is said that this Rakhal Chandra Mandal was an under raiyat under one Jasoda who had purchased the raiyati interest from the present judgment- debtor. This purchase by Jasoda is admitted by the judgment-debtor who has been examined by the opposite party. However, the case, so far as the present petitioner is concerned, is that he has purchased a portion of the interest of the under-raiyat. On this footing he sought to make the application to have the sale set aside under Sections 173 and 174, Ben. Ten. Act. The learned Munsif pointed out that the petitioner's kobala was executed long after the passing of the Bengal Tenancy Act of 1928. Under Section 48.F of that Act the holding of an under-raiyat shall not be transferable except with the consent of the landlords and in this case no such consent was taken. Therefore the alleged transfer in favour of the petitioner is not valid in law. For the petitioner in this Court, this point is not disputed. But the contention is that the petitioner need not show that his purchase is valid in law, but all that he need show is that he is a person interested in the sale or a person whose interests are affected in the sale. It is contended that these expressions have been given a very wide interpretation and that they may include such thing as pecuniary interest: see the cases in Dhirendra Nath Roy v. Kamini Kumar and Bulanda Bashini Dassi v. Pran Gobinda Dhar : AIR1936Cal547 . Unfortunately for the petitioner, the learned Munsif has come to a further finding of fact, namely that there is no reliable evidence relating to possession of the applicant who did not give his evidence. I must take it therefore that the petitioner has not proved that as a result of the purchase he has got possession of the land. Therefore, on one hand, the purchase was invalid in law and on the other hand, it was not given effect to. Virtually, it is a paper transaction that we are concerned with. It is contended for the petitioner that even then he has got pecuniary interest because he has paid the price for the land. But the cases cited above would not cover a case of the present nature in which the petitioner was not given possession of the property and therefore no question of his being liable to ejectment arises. See the case in Midnapur Zamindary Co. Ltd. v. Radhika Nath Biswas (1936) 64 CLJ 475 where it is pointed out that 'incumbrance' cannot include lands of which the tenant was never put in possession. This is not a fit case for interference by this Court under Section 115, Civil P.C. The rule therefore stands discharged. There will be no order as to costs.
3. I agree.