1. This appeal arises out of a suit for recovery of possession of the lands in suit on establishment of the plaintiff's title thereto. The facts are various and complicated but for the purposes of the present appeal they may be shortly stated as follows: Priyanath Das (brother of the plaintiff) was the original tenant in respect of the land in suit under the Burdwan Raj. In 1901 the Maharaja obtained a rent-decree against him and the holding was sold in execution of that decree and purchased by the Raj in 1903. In 1904 and 190-5 the Raj let out the holding on an yearly tenancy to one Kailash. In 1907 a lease was granted to him of this land for an indefinite period. In 1906 Priyanath brought a suit against the Maharaja for establishment of title and other reliefs but it was dismissed. In 1908 there were proceedings under Section 145, Cr.P.C., between Kailash and Priyanath which terminated in favour of Kailash. In 1907 a suit was brought by two women Bhairabi and Brindabati who were said to be the mortgagees of Priyanath against him on an unregistered kot kabala said to have been executed by Priyanath in their favour. There was a consent decree in the suit which was executed and the holding was put up to sale and it was purchased by the two women and possession taken against Priyanath. In 1909 a suit was instituted by Gadadhar (heir of Bhairabi) and Brindabati under Section 69 Bengal Tenancy Act, against the Maharaja but the suit was dismissed in 1911. In 1910 Gadadhar and Brindabati executed a kot kabala in favour of the plaintiff who in 1912 brought a suit on it and obtained a decree in execution of which he purchased the holding and claimed to obtain possession of it in 1913. In 1913 one Baikuntha Pandey obtained a decree for money against Kailash and in execution of it purchased the holding; and on his attempting to take possession a claim was filed by the plaintiff which was allowed. Baikuntha did not take any further steps in the matter and, so far as this litigation is concerned, he seems to be unconcerned and is out of it. In 1917 the Maharaja instituted a rent suit against Kailash which was decreed. On the 16th July, 1917, the plaintiff deposited the decretal amount. The Maharaja objected to the right of the plaintiff to make the deposit under Section 170, Bengal Tenancy Act, but the Executing Court passed the following order: 'The petitioner's locus standi is proved and he is permitted to deposit the amount.' On the 21st September, 1917,the Maharaja withdrew the amount so deposited by the plaintiff. In 1918 another suit for rent was brought by the Maharaja against Kailash. A decree was obtained on the 20th June, 1919, and the property was put up to sale on 20th February, 1920, and purchased by defendant No. 1 who is the appellant before us. The plaintiff preferred a claim which was dismissed on the 2nd April, 1921. The present suit was instituted on the 28th September, 1921, against the purchaser (defendant No. 1) and the Maharaja of Burdwan. It appears that the plaintiff paid rent to the Maharaja in respect of this holding for a portion of 1325 and 1326 which was accepted. The defence of the defendant was that the plaintiff was never the tenant of the Maharaja and had no cause of action for the suit. The trial Court held that the unregistered kot kabala in favour of Bhairabi and Brindabati who were said to be Priyanath's aunt and mistress was a collusive document and the litigation following it vas not bona fide. In this view it held that the plaintiff got no title from Gadadhar and Brindabati. With regard to the subsequent part which the plaintiff took in the rent suits against Kailash the trial Court held that the plaintiff got no title and in this view dismissed the plaintiff's suit. On appeal the learned Additional District Judge of Midnapur decreed the plaintiff's suit. The learned Judge did not consider the nature of the transaction between Priyanath and Bhairabi and Brindabati as he was apparently of opinion -that the plaintiff's tenancy under the Maharaja was established by the fact of th6 Maharaja's withdrawal of the amount deposited by the plaintiff in 1917 in the first rent-decree against Kaliash and also by receipt of rent by the Maharaja for two years from the plaintiff. The learned Judge's view is that by these acts the Maharaja recognized the tenancy and, therefore, he was not justified in bringing a suit for rent against the old tenant; and consequently the defendant as purchaser in execution of the decree in that suit has obtained no title to the holding. Now let us examine the proposition laid down by the learned District Judge and the correctness of the conclusion drawn by him from the facts as above stated.
2. The learned Judge does not plainly say so, but he seems to find that the plaintiff's title having prevailed over Baikuantha's title who was the purchaser of Kailash's interest, the plaintiff acquired the holding which stood in the name of Kailash. This is not a correct view. Kailash's interest was sold in execution of a money-decree and purchased by Baikuntha. That sale, so far as Kailash was concerned, was binding. But it did not confer any right on Baikuntha against the Maharaja in the absence of recognition of Baikuntha's purchase by him. Admittedly the holding was a non-transferable occupancy holding and, therefore, the purchaser in a money-decree against the tenant of such a holding takes only the tenant's interest, and, so far as the landlord is concerned, obtains no interest or title. Baikuntha attempted to take possession of the property but was resisted by the plaintiff who succeeded and Baikuntha having taken no further steps in the matter, he must be supposed to have lost all interest by his purchase. After Baikuntha went out Kailash remained liable for the rent and so far as the landlord was concerned Kailash was his tenant. The tenancy of Kailash, therefore, did not terminate after the purchase as Baikuntha virtually gave up his right to the tenancy. In the Special Bench case of Chandra Binode' Kundu v. Ala Bux Dewan 58 Ind. Cas. 353 : 48 C. 184 : 31 C.L.J. 510 : 24 C.W.N. 818 (F.B.) it was held modifying the Full Bench decision in the case of Dayamoyi v. Ananda Mohan Ray 27 Ind. Cs. 61 : 42 C. 172 : 20 C.L.J. 52 : 18 C.W.N. 971 that a transfer for value of the whole or part of an occupancy holding apart from the legal estate is operative against the raiyat, whether it is made voluntarily or involuntarily. The effect of this view is that the tenant is not entitled to question the validity of the purchase by the purchaser. This case does not go so far as to hold that the tenancy passes to the purchaser against the landlord and vests in the purchaser without the landlord's consent. We are, therefore, of opinion that the plaintiff has not acquired any title to the holding through Baikuntha or Kaliash. In fact his right to the holding which he now asserts was against Baikuntha and consequently against Kailash. There is no privity between him and Baikuntha or Kailash as regards the transfer of the holding. The position is this that after Baikuntha ceased to have any concern with this holding it remained with Kailash who continued to be liable for the landlord's rent.
3. The next question that arises is the effect of the withdrawal of the amount by the Maharaja in 1917. It is argued that by withdrawing the amount deposited by the plaintiff in the rent-decree against Kailash the Maharaja recognised the tenancy of the plaintiff and was precluded from instituting a subsequent suit for rent against Kailash. Now in order to recognise or ratify something it is necessary that that thing must exist. As we have found the plaintiff had not acquired the tenancy at the time when he made the deposit. It can hardly be maintained that if a stranger to the holding makes a deposit and the landlord withdraws the amount, he, by his conduct, is bound to treat the trespasser as his tenant. Then again when the plaintiff made the deposit, the Maharaja protested against the plaintiff's right to make the deposit; but the Court rightly or wrongly held that the plaintiff had locus standi and the Maharaja withdrew that amount after that decision. It is argued on the authority of Jugal Mohini Dasi v. Sri Nath Chatterjee 7 Ind. Cas. 477 : 12 C.L.J. 609 that the effect of the decision was that between the landlord and the transferee of the tenure, the transferee acquired an interest in the tenure by purchase. If the decision is to be applicable to the facts of this case it must be found that the plaintiff was a transferee by purchase which we have held he was not. It is not necessary in this case to consider the correctness of that decision. When proper occasion arises it may have to be re-considered, for the learned Judges for the view they took relied on the case of Thomas Barclay v. Syed Hossein Ali Khan 6 C.L.J. 601. In that case the landlord did not contest the right of the depositor and withdrew the money. The learned Judges applying the principle of estoppel to the facts of that case held that the landlord was precluded by his conduct from contesting the right of the depositor to make the deposit for his failure to take exception before withdrawing the amount has put the transferee at a loss. In Gadadhar Ghosh v. Midnapur Zemindary Co. 43 Ind. Cas. 742 : 27 C.L.J. 385 the landlord withdrew the deposit without any protest and it was held as in Thomas Barclay v. Syed Hossein Ali Khan 6 C.L.J. 601 that he was estopped from questioning the right of the depositor. The ground on which the principle of estoppel was applied in these cases is open to question but as they are not applicable in the present case, we need say no further. We accordingly hold that the withdrawal of the amount deposited by the plaintiff in 1917 did not confer any right on the plaintiff in respect of the holding nor did it establish the relationship of landlord and tenant between the Maharaja and the plaintiff who is not a transferee of the tenant's interest.
4. Then we have to consider the effect of the acceptance of rent from the defendant by the Maharaja for the two years 1325, 1326. It is noticeable that from the date of the purchase by the defendant in 1918 no rent was paid by the plaintiff to the Maharaja or accepted by him. No authority has been placed before us for the proposition that mere acceptance of rent creates the relationship of landlord and tenant. It has' not been distinctly found by the learned Judge that the plaintiff was in possession at the time when the rent-decree was executed by the Maharaja. Apart from all these considerations if Kailash's tenancy had not terminated or extinguished and was subsisting any act of the Maharaja--whether the withdrawal of the amount or acceptance of rent from a stranger--did not put an end to that tenancy. The conduct of the Maharaja has been that of an absentee landlord whose affairs are managed by persons who are not so mindful of the effect of their acts. It may be noted here that the Maharaja appears in this appeal as he did in the Court below and has supported the appellant's case. In the circumstances as stated above we do not think that the plaintiff has acquired any right in the property in suit and his suit must fail.
5. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs. There will be one set of costs in favour of defendant No. 1. The Maharaja will bear his own costs.
6. I agree.