1. The plaintiffs purchased an occupancy holding belonging to one Kristo Das Bairagi in execution of a money-decree on the 20th July 1903, and obtained symbolical possession on the 8th December 1903 but when they went to take actual possession in 1311 they were resisted by the defendants. The defence was that the holding was not transferable according to local custom and, therefore, nothing-had passed to the plaintiffs, that only 4 annas of the holding belonging to Kristo Das could have passed and not the 8 annas belonging to plaintiff and 4 annas belonging to Narain and that the suit should be dismissed as Narain the owner of 4 annas was not a party. The Court of first instance held that the share of Kristo Das was only 4 annas, that occupancy holdings were not transferable in the locality and nothing passed to the plaintiffs and that the suit was bad for the non-joinder of the 4 annas co-sharer and dismissed the suit.
2. The learned Subordinate Judge, on appeal, has reversed the decree of the first Court holding that the question of transferability does not arise and the suit should not be dismissed for non-joinder and in the result decreed the suit to the extent of 4 annas belonging to Kristo Das with costs.
3. Defendant No. 1 appeals and on his behalf it is contended that the learned Subordinate Judge has erred on both points.
4. It may be taken as settled law now that the raiyat, whose occupancy holding has been sold in execution of a money decree, can raise the question of transferability as soon as he comes to know of the execution proceedings taken against his holding. It was held in the case of Bhiram Ali Sheikh Shikdar v. Gopi Kanth Shaha 24 C. 355 : 1 C.W.N. 396, that when the raiyat opposed the possession of the auction purchaser of his holding and the latter brought a suit for possession, the raiyat could oppose the suit by pleading that his holding was not transferable. In the case of Durga Charan Mandal v. Kali Prasanna Sarkar 26 C. 727 : 3 C.W.N. 586, it was held that the raiyat judgment-debtor can raise it even after sale in proceedings about delivery of possession in the case coming within Section 244, Civil Procedure Code. He could necessarily do so before sale Majed Hossein v. Raghubur Chowdhury 27 C. 187, and Gahar Khalipa Bepari v. Kasi Muddi 27 C. 415 : 4 C.W.N. 557. In the case of Sheikh Murullah v. Sheikh Burullah 9 C.W.N. 972, it was held that if the tenant knows of the execution proceedings against his holding and does not object he cannot afterwards raise it and the title as between him and the purchaser is completely vested in the purchaser. The same view was taken in the case of Dwarka Nath Pal v. Tarini Sankar Roy 11 C.W.N. 513 : 34 C. 199 : 5 C.L.J. 294. If the raiyat has notice of the execution proceeding and does not take the objection or if the matter is raised and decided under Section 244 the raiyat cannot raise it as a defence in a separate suit.
5. A sale of a non-transferable occupancy holding is valid if the sale is held with the landlord's consent. Ananda Das v. Rutnakar Panda 7 C.W.N. 572. It was held in the case of Basarat Mandal v. Sabulla Mandal 2 C.W.N. CCLXXII, that the only parties entitled to raise the question of transferability are the landlord and the tenant and not any trespasser. In the case of Sadagar Sircar v. Krishna Chandra Nath 26 C. 937, it was held that a person claiming under a settlement from the landlord could raise it against a purchaser in execution of a rent decree obtained by a co-sharer landlord. In the case of Bam Gopal Aditya Deb v. Rajan Sadagar 6 C.L.J. 43, the learned Judges said that the question arises both as between a landlord and a tenant and also as between a tenant and a third party. It was perhaps not necessary to make this statement in that case as the defendants who pleaded that the mortgage of the plaintiff was invalid, were purchasers under a rent decree obtained by 'the landlord. There can be no doubt that the tenant can raise it against a third party trying to sell or dispossess him as. held in the case of Bhiram Ali 24 C. 355 : 1 C.W.N. 396, but I do not think that the learned Judges meant to lay down or even to express an opinion that a third party could raise the plea against a person who had purchased the holding in execution of a, decree against the raiyat. In the case of Ambika Nath Acharjee v. Aditya Nath Moitra 6 C.W.N. 624, it was held that the question of transferability did not arise in a case between a purchaser of a part of an occupancy holding arid the auction purchaser of the Whole holding. In the case of Ayenuddin Nosyu v. Srish Chandra Banerji 11 C.W.N. 76, it was held that the question did not arise in a case between the purchaser of the holding in execution of a mortgage-decree and a purchaser in execution of a rent decree obtained by a co-sharer landlord. In the case of Harachandra Poddar v. Umesh Chandra Bhattacharjee 11 C.L.J. 20 : 14 C.W.N. 71 : 5 Ind. Cas. 39, it was held that a co-sharer landlord who had purchased the holding in execution of his own decree cannot raise the question in a suit by the mortgagee of the holding. Here the question is raised not by the tenant but by a co-sharer of the tenant. The tenant himself is silent and the landlord is not a party to the suit. It is said that the landlord has brought a suit for rent against the judgment-debtor tenant and his co-sharers notwithstanding the sale and must he taken to be unwilling to recognise the purchase of the plaintiff but that does not make the plea one that can he legitimately taken by the contending defendants when the co-sharer landlord who has purchased in execution of his own rent decree is held incapable of raising the plea. I do not think there can he any special reason for admitting the plea when raised by a co-sharer tenant. Upon principle also I think such a plea should not be allowed to be raised by a third party. If it were open to an unconcerned person to defeat a a purchaser of an occupancy holding by pleading non-transferability the widest door would be opened to misrule and breach of the peace. There would be a scramble for the, property sold although the landlord might be willing to accept the purchaser as his tenant. The first plea, therefore, fails.
6. It has been expressly laid down in Order 1, rule, 9 Schedule I of the Civil Procedure Code that no suit is to fail for non-joinder and the Court may try the suit so far as the rights of the parties before it are concerned. As Narain is not a party he would not be bound by the decree and as the plaintiff gets a decree for four annas only, Narain may not have any interest in objecting to the decree although he would have objected to the original claim for 16 annas, if he were made a party. Under the circumstances of the case I do not think that the suit should be dismissed for non-joinder.
7. In the result, therefore, the appeal is dismissed with costs.