1. The defendant No. 1 purchased a non-transferable occupancy holding from the tenant in the year 1293. The landlord, however, sued the tenant for arrears of rent and obtained a decree in the year 1901. In 1902 the defendant No. 1, who had purchased the holding from the tenant as stated above, paid salami for mutation of names and he was recognised as tenant by the landlord in 1902. Subsequently in the year 1904 the landlord put the decree which he had obtained in the year 1901 against the tenant into execution and in the sale which followed, the holding was purchased by defendant No. 2. The defendant No. 3 got the holding by conditional Bale from the defendant No. 2. The plaintiff obtained a lease from the defendant No. 3 and brought a suit for recovery of possession on establishment of his title. It was contended before us on behalf of the appellant that after the defendant No. 1's purchase had been recognised by the landlord, the relationship of landlord and tenant between the landlord and the old tenant ceased and that, therefore, the provisions of Section 65 or the provisions of Chapter XIV of the Bengal Tenancy Act could not apply to the case.
2. It was suggested before us, on behalf of the respondent, that the landlord might have recognised the purchase on condition that the purchaser should pay up the arrears of rent (the rent decree), and we accordingly remanded the case for a finding upon the question as to what was the understanding, if any, at the time of the recognition of the defendant No. 1 by the landlord.
3. The learned District Judge has come to a finding that the recognition was subject to no condition, and the finding amounts to this, that the purchaser could not be held liable for the arrears of rent.
4. That being so, and the old tenancy having come to an end, the landlord could not put up to sale the holding (which had passed to the defendant No. (1) as the holding of the old tenant. Apart from the question whether the plaintiff's lessor who was the purchaser of a non transferable occupancy holding had acquired any right to the holding, we think that upon the finding arrived at the suit must fail.
5. The appeal is accordingly allowed and the suit must be dismissed with costs in all Courts