1. This was a suit for recovery of khas possession of certain land which originally formed the holding of one Amjad Ali. This holding, which was not transferable, had nevertheless been sold to the first defendant. The plaintiffs-landlords brought a suit for rent, obtained a decree, and, in execution sold the holding. Thereafter, the first defendant deposited the purchase-money and the sale was set asides Subsequently, the plaintiffs brought this suit on the ground that, the holding not being transferable, they were entitled to khas possession. The evidence appears to be somewhat meagre and the findings of the learned Subordinate Judge on the questions of fact arising in the case are by no means so full as might be desired. In the circumstances, I assume that he accepts the findings of fact arrived at by the Munsif which are sufficient for the purpose of this case.
2. It is admitted by both sides before me that the deposit purported to be made by the first defendant under Section 310A, Civil Procedure Code. It has been found by the Munsif that the plaintiffs withdrew the money knowing the real circumstances of the case. The order by which the sale was set aside recites that the decretal amount had been deposited by the judgment-debtor. The Munsif says that this was a clerical mistake which could not have the effect of misleading the plaintiff in any way. The facts then to which the law is to be applied are that the land-lords had sold the holding in execution of a rent decree, that the first defendant who was a purchaser of this holding deposited the purchase- money and that the landlords knowing who he was agreed to the sale being set aside on that deposit. I may say, in passing, that the learned Subordinate Judge's remark that the estoppel of the plaintiffs was based on the fact that they withdrew the money appears to have been made on a misapprehension, The money was not actually withdrawn by the plaintiffs until after the institution of the present suit.
3. Both the Courts below held that the plaintiffs were estopped from questioning the purchase by the first defendant, relying on the case of Thomas Barclay v. Syed Hussain Ali Khan 6 C.L.J. 601.
4. Three points are taken by the learned Vakil for the plaintiffs appellants. The first is that Section 310A, had no application to the case in which the purchase-money was deposited and the order of the Court was consequently without jurisdiction. That Section 310A does not apply was laid down in the case of Asiruddi Mandal v. Makhoda Moyee Dasi 35 C. 543 : 12. C.W.N. 434. But it appears to me that this question whether Section 310A applies or not does not really touch the question of estoppel on which the decision of the Courts below is based. If the plaintiffs misled the first defendant by their conduct and induced him to change his position by recognising certain action that he had taken which they were not bound to recognise, the fact that that action of his was not in accordance with law is really irrelevant. The liability of the plaintiffs is based on their conduct towards defendant No. 1. The fact that his action was not justified by law and ought not to have been permitted by the Court, does not affect the basis of their liability;
5. Secondly, it is argued that Section 170, Clause 4 of the Bengal Tenancy Act, which was enacted in 1908, applies to this case. Reliance is placed on the case of Jogadanand Singh v. Amrita Lal Sirkar 22 C. 767. I think that case has no application. It was held therein that Section 310A of the Civil Procedure Code and Section 174 of the Bengal Tenancy Act applied to cases which were pending at the time of the enactment of those sections because these sections really dealt with matters of procedure. But the section which is now under consideration does not, in my opinion, relate to procedure at all. It enacts that the withdrawal of money deposited under Section 310A by a landlord shall not operate as an admission of the transferability of the holding. It appears to me to be a rule of evidence. Assuming that the decision in Thomas Barclay v. Sped Hossam Ali Khan 6 C.L.J. 601 is a correct interpretation of Section 115 of the Evidence Act, this clause modifies the effect of that section with regard to certain cases. It relieves the landlords of a liability which on the above assumption would attach to them under that section. An enactment of that nature does not appear to me to relate to procedure and cannot, I think, have any retrospective effect.
6. Thirdly, it is argued that the facts do not constitute an estoppel and it is sought to distinguish the case of Thomas Barclay v. Syed Hossain Ali Khan 6 C.L.J. 601 on the ground that in this case there is nothing to show that the landlords were present when this sale was set aside. I do not attach much importance to this argument, as it was not suggested in the Courts below that the landlords' agent exceeded his instruction in giving his assent to the setting aside of the sale.
7. The case Seems to me very similar to that of Thomas Barclay v. Syed Hossain Ali Khan 6 C.L.J. 601. The position of a person whose immoveable property has been sold within the meaning of Section 310A, Civil Procedure Code, is very similar to that of a person having an interest which is voidable upon a sale within the meaning of Section 171 of the Bengal Tenancy Act. Nor do I think it is of vital importance that the money was actually withdrawn after the institution of the present suit. From the case which I have cited I quote the following remarks: 'if, therefore, the plaintiffs had raised the question of the right to make the deposit, in the proceeding under Section 171, and if it had been determined against the then applicants, what would have been their position? They would not have been allowed to make the deposit to satisfy the decree and to stay the sale. The sale would hare taken place, and if the sale-proceeds amounted to more than what plaintiff was entitled to recover the balance would have gone to the defendants.' This is precisely what happened in the present case. The mere deposit of the money by the first defendant could not properly amount to an estoppel. But when the decree-holders assented to the Courts' accepting that deposit and acting on it, the case was entirely changed, and their action in that respect seems to me, having regard to the ruling which I have quoted, to estop them from afterwards Saying that the defendant was not a person whose immoveable property has been sold.
8. I think, therefore, that the decision of the Courts below is in accordance with the ruling which I have cited. The appeal is accordingly dismissed with costs.