1. This an appeal by the defendant who is a putnidar under the plaintiff-respondent.
2. On a previous occasion, the putni was sold under the provisions of Regulation VIII of 1819 at the instance of the plaintiff landlord who purchased it in 1900. That sale was, however, set aside in May 1901 at the suit of the defendant. Thereafter according to the findings arrived at in the lower Courts, the plaintiff served notices on the defendant in December 1901 and March 1903 binding him to resume possession of the putni taluk.
3. It is urged on behalf of the defendant that he did not resume possession, and that the mere fact that the plaintiff served certain notices on him to resume possession does not entitle the plaintiff to recover the rent for the years in suit, namely, 1309, to Chait 1312. It is said that the lower appellate Court should have recorded a finding as to whether the defendant had, as a matter of fact, resumed possession of the taluk. In the next place, it is urged that the District Judge was in error in saying that the defendant omitted to produce any rent receipt and that there is a receipt printed at page 15 of the Paper book.
4. With reference to the second contention we find that the document is not rent-receipt. It is a chalan of rent for Rs. 244; that is not a receipt. The District Judge was certainly entitled to argue that the defendant's plea had not been made out owing to the absence of a formal receipt.
5. Coming now to the substantial contention in the case, we have to observe that the general principle is that a vendor is bound to give peaceful possession to his vendee. So, also, ordinarily, the tenant goes to take possession; and, if he is unable to do so, he invokes the assistance of his landlord, and this practice appears to have been present in the minds of the framers of the Transfer of Property Act, Section 108, Clause (b); of which says that the lessor is bound, on the lessee's request, to put him in possession of the property. The circumstances of the present case are somewhat special; inasmuch as we are not dealing with the case of an initial tenancy but of a tenant who caused the sale of his property to be set aside and was at liberty at any time to go back to the possession of his lands and was in fact invited to do so by the landlord. There is nothing to show that the landlord obstructed the tenant in any way or that the notices were in any way served to save appearances. It was the duty of the tenant to take back his lands for which he bad, Virtually, brought an action, and, if he did not do so, though formal possession was taken through the Court in Baisak 1311, as appears from the judgment of the first Court, to what reason the delay may be attributed, we are unable to understand. On the question of law, we are not prepared to accede to the contention of the learned Vakil for the defendant that the landlord is bound to put his unwilling or recalcitrant tenant into possession of his holding.
6. The appeal, accordingly, fails and is dismissed with costs.