1. The suit in which this appeal arises was brought by the plaintiff for declaration of his title to the ka schedule properties on the allegation that he had purchased a non transferable occupancy-holding in execution of a mortgage-decree against the original tenants. In the suit the plaintiff asked for a further declaration that he is entitled to a declaration of his title to an eight anna superior maliki interest in the lands of schedule ka and kha. There was also a prayer for an injunction restraining defendants 1 to 4 from executing the rent decree obtained by them in respect of the lands of schedules ka and kha. The defence in the suit was with regard to the first part of the claim that as the holding was a non-transferable occupancy-holding no right passed to the plaintiff by the sale held in execution of the mortgage decree. With regard to the second part of the claim the defence was that the landlord's interest was in the defendants and that defendant 5 who is said to be the vendor of the plaintiff, had no share in it. Both the defences prevailed in the Court of first instance with the result that the plaintiff's suit was dismissed.
2. On appeal the lower appellate Court has ultimately affirmed the decision of the Court of first instance. It is not necessary for the purpose of this appeal to narrate the history of the intermediate proceedings culminating in the final decision of the lower appellate Court which is now the subject-matter of the present appeal.
3. In second appeal by the plaintiff Mr. Brojolal Chakravarty has not seriously contested the finding of the Courts below with regard to the claim in respect of the superior maliki interest in the eight annas share in schedules ka and kha and consequently nothing need be said further with regard to this part of the claim.
4. The point in controversy in the present appeal relates to the claim about the plaintiff's purchase in execution of the mortgage decree and the 16 annas interest of the tenants in schedule ka of the plaint land. It appears that defendants 1 to 4 obtained a decree against the tenants for rent and in execution of that decree they proceeded to sell the holding in question. The 18th November 1920 was fixed for the sale of the defaulting jote. On 17th November the present plaintiff put in an application praying to deposit the decree-holder's dues under Section 170, Ben. Ten. Act, to save the jote from sale on the ground that he was an auction-purchaser of the land which was put up to sale. The Munsif directed that that application be put up on the next day, that is, on 18bh November, in the presence of the pleaders of both parties. On 18th November 1920 the order recorded by the Munsif is as follows:
Heard pleaders on both sides. The applicant is permitted to deposit the decree-holder's dues. Put up on 26th November 1920 awaiting the challan.
5. On 26fch November the challan was received and the money was deposited and the case was ordered to be dismissed on full satisfaction. On 7th December 1920 the payment order of Rs. 41-5-6 was granted to the decree-holder through his muktear. It appears clear from these facts that the decree-holder withdrew the money in satisfaction of the rent decree, and it is on this fact, as narrated in the order-sheet to which I have referred, that the argument is built on behalf of the appellant that there has been a recognition by defendants 1 to 4 of the plaintiff as a tenant in respect of the non-transferable occupancy-holding. The Subordinate Judge who dealt with the appeal eventually came to the conclusion that this withdrawal by the landlord had not the effect of recognition by defendants 1 to 4 of the tenancy, as the withdrawal was made under protest. The basis of the Subordinate Judge's finding that the protest was made on behalf of the landlord is based on nothing else but as he himself states on the statements in the order sheet of 18th November 1920, namely 'Heard pleaders on both sides.' This statement to my mind is quite consistent with the other position, namely that there might have been no objection on the side of the landlord. There was no evidence on the record from which the Subordinate Judge could come to the conclusion from the mere use of the words 'Heard pleaders on both sides' that as a matter of fact the landlord raised the protest with reference to this deposit. On the other hand, from the subsequent orders and subsequent conduct of defendants 1 to 4 allowing the money to be deposited and in receiving payment by the payment order shortly after, namely 7th December 1920, it would seem and the inference would be legitimate that there was no protest on behalf of the landlord. It was a great assumption to make on the part of the Subordinate Judge when he stated that from the word3 'Heard pleaders on| both sides,' it must be assumed that the landlord objected to the deposit of the money. On this view we think that the fact of the acceptance of the deposit amounted to a recognition by defendants 1 to 4 of the tenancy of the plaintiff. If any authority is needed for this proposition reference may be made to a series of decisions beginning from the case of Thomas Barclay v. Syed Hossein Ali Khan (1907) 6 C.L.J. 601. There are1 later cases to which reference may also be made. In the case of Jugal Mohini Dasi v. Srinath Chatterjee (1910) 7 I.C. 477 the same view was adopted as also in the case of Motookdhari Shukal v. Jugdip Narain Singh (1914) 28 I.C. 343. Assuming however, for the sake of argument, that there was a protest on the part of defendants 1 to 4 against the deposit being made by the plaintiff, the preponderance of opinion is in favour of the view that notwithstanding the protest if the money is accepted by the landlord that amounts to a recognition of the tenancy on the principle of estoppel. The question arose directly in the case of Motoohdhari Shukul v. Jugdip Narain (1914) 28 I.C. 343 to which I have already referred where Digambar Chatterjee, J., and Walmsley, J., reviewed the authorities and said that the acceptance of rent under protest would operate in favour of the payer as a waiver of any forfeiture incurred, They quoted a passage from the case of George Henry Davenport v. The Queen (1877) 3 A.C. 15 which may be quoted with appositeness on the present occasion. Their Lordships of the Judicial Committee in that case said this:
Where money is paid and received as rent under a lease a mere protest that it is accepted conditionally and without prejudice to a right to a prior forfeiture cannot countervail the fact of such receipt.
6. It is pointed out in this case that the protest under which the plaintiff received the amount deposited by the mortgagee of a non-transferable occupancy-holding did not make the receipt less a receipt of rent from the mortgagee and in this view it was held that the mortgage was recognized by the plaintiff who was not entitled to a decree for ejectment. In Jugal Mohini Dasi v. Srinath Chatterjee (1910) 7 I.C. 477 also Asutosh Mookerjee, J., considered the question and held that it made no difference in the application of the principle of estoppel if the deposit was made under protest. There also the deposit was made under protest under the provisions of Section 170, Ben. Ten. Act, as it stood before the amendment of 1928. The learned advocate for the respondent has, however, relied on a decision o Woodroffe, J., in the case of Bhata Ram Das v. Kshitish Chandra Lahiri (1915) 30 I.C. 83. It may be observed that in that case the deposit was made after the holding had been sold in execution of a rent decree. That is a circumstance which distinguishes it from the facts of the case in Motookdhari Shukul v. Jugdip Narain Singh (1914) 28 I.C. 343. There was nothing to prevent defendants 1 to 4 from refusing to take the money which was deposited in Court, It might be, if they intended to refuse to recognize the transferee, the plaintiff in the present suit, they might have brought a suit in ejectment immediately after the deposit was made. It was suggested in the petition on which the orders were made by the Munsif in the proceedings under Section 170, Ben. Ten. Act, that they were purchasers of the entire holding in execution of the mortgage decree. There was therefore nothing to prevent the landlord if he wanted not to recognize the transferee from bringing the suit in ejectment on the ground that they were trespassers on the land. It is suggested, however, that the facts found in this case show that the tenant was in possession of a portion of the holding. If he was in possession he was in possession as a trespasser, for he had no right to remain on the land after his holding had been sold in execution of the decree.
7. It is next contended by the learned advocate for the respondent that there are observations or dicta in some of the later decisions which throw doubt on the accuracy or correctness of the decisions of which Thomas Barclay v. Syed Hossein Ali Khan (1907) 6 C.L.J. 601 is a type. He refers in particular to the case of Suckchand v. Giridhari Das A.I.R 1926 Cal. 97 I.C. 1016. An examination of that case, however, will show that there the deposit was made by a trespasser for it is pointed out in that case that the deposit was made by a person who had not acquired the tenancy at the time when he deposited the decretal amount. That case is distinguishable from the present case. Reliance has also been placed upon the obiter dictum of the learned Chief Justice in the case of Fazoo Mia v. Sultan Ahamad Chaudhury : AIR1927Cal817 . The learned Chief Justice does not express-any final opinion and says:
It is doubtful whether a mere acceptance or withdrawal of a deposit operates to oblige the landlord to recognize the depositor as a tenant.
8. We were referred to the earlier decisions, and it seems to us that the preponderance of the judicial opinion is in favour of the view that under circumstances like the present the acceptance of the deposit will have the effect of recognition of the tenancy. We think therefore that the claim of the plaintiff on the basis of his purchase of the occupancy-holding in execution of his mortgage-decree in respect of the ka schedule properties must be-allowed and the decrees of the Courts below in so far as they dismissed the claim in respect thereof must be discharged.
9. As the appellant has not succeeded with regard to the other part of his claim we think the proper order to make with regard to costs is that each< party will bear its own costs throughout.
10. The plaintiff will be entitled to make the deposit of rent due under the decree of the landlord
11. I agree.