1. The only question in this appeal is whether the first defendant could in this suit raise the question of non-transferability of the property in question. It appears that the plaintiff purchased these lands among others at an auction sale in execution of a decree 'which he had obtained against Panaullah, the father of the present defendant No. 1. The plaintiff then brought a second suit against the said Panaullah and others who are said to have colluded and kept him out of possession of the property. The plaintiff obtained a decree in that suit, and in execution of that decree was given formal possession of the lands and houses by the Court, but the defendants, as a matter of fact, still kept the plaintiff out of possession, and the plaintiff was, therefore, compelled to file this third suit.
2. It appears that the second suit was in respect of property described in three schedules. The present defendant No. 1 claimed an interest only in the property comprised in Schedule No. 2, while his father Panaullah was said to have been alone interested in the properly in Schedules Nos. 1 and 3. The present defendant No. 1 alone contested that suit. The question of non-transferability, which could have been raised, was not raised in that suit. Panaullah did not contest that suit and allowed a decree to go against him by default. The present suit is in respect of the lands and houses in Schedules Nos. 1 and 3.
3. The Court of first instance gave the plaintiff a decree in respect of a portion of the property claimed excluding certain huts. The learned Subordinate Judge has reversed that decree and dismissed the plaintiff's suit on the ground that the defendant No. 1 was not estopped in this case from raising the question of non-transferability. We think that in his statement of the law on this points the learned Subordinate Judge was clearly in error. This question might and ought to have been raised before the Court in the last suit. The fact that Panaullah allowed the judgment to go by default would not prevent the matter from being res judicata against him; and, Panaullah having died, and his son, defendant No'. 1, having inherited his property and rights, if any, is bound by the judgment though an ex parte one which was passed against his father. That concludes the matter.
4. This appeal must, therefore, be allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored with costs both here and in the lower appellate Court.