1. This second appeal arises out of a judgment and decree of the Subordinate Judge, 3rd Court, of the 24-Parganas dismissing the appeal from the learned Munsif's judgment in a suit for recovery of possession of a holding upon declaration of the plaintiff's right hereto. The appeal is on behalf of defendants Nos. 1 and 2, the defendant No. 2 being the transferee of an occupancy holding which was not transferable by custom and defendant No. 1 being the mortgagee from defendant No. 2. The holding belonged to defendant No. 4. On the 14th July 1896, defendant No. 4 sold the holding to defendant No. 2 without obtaining the consent of the landlord. The rent appears to have been always paid on behalf of the recorded tenant, who appears not to have been the defendant No. 4 but a lady whose connection with the other defendants is unknown. In June 1902 when the landlord, defendant No. 3, had obtained a decree for rent against defendant No. 4 whom he had recognised as tenant, the defendant No. 2 deposited the decretal amount in order to save the holding. The deposit was made by defendant No. 2 on behalf of defendant No. 4, but in making it he used the words 'dakhalikar kharid sutre' or the man in possession by virtue of purchase.' The landlord withdrew this deposit; he again sued defendant No. 4 and obtained a decree on the 19th January 1910. He sold the holding in execution of this decree. The plaintiff purchased the holding at auction-sale for Rs. 175. On the 19th September 1910, the sale was set aside by the Court of first instance on the application of the mortgagee, defendant No. 1. But in appeal the District Judge on the 16th December 1910 set aside that order and confirmed the sale, holding that the interest of defendant No 1 was not affected by the sale as the landlord had recognised the defendant No. 2 as the tenant, and neither defendant No. 1 nor defendant No. 2 are affected. He advised the defendant No. 1 that he could resist the possession of the plaintiff as not being the holder from defendant No. 4.
2. The contention in the lower Courts and in appeal was that the suit was barred by the doctrine of res judicata and that there had been recognition by the landlord. It would be difficult to say that the finding of fact by the learned Judge in the miscellaneous proceeding, dated the 19th December 1910, in which he says it is proved that Dino Palk has been recognised by the landlord as tenant of the laud, can in itself operate as res judicata on the question of fact; and it is perfectly obvious that the Judges who have successively decided this case were and we ourselves are still fully competent to decide that question of fact for ourselves, and indeed it is one branch of this appeal before us that there was legal recognition. What the Judge in that case held as a matter of law was that defendants Nos. 1 and 2 had no locus standi to contest the sale, and that, herefore, the sale must be restored without prejudice to their interest; arid upon this it is urged before us to-day that although there is no res judicata there may be estoppel, inasmuch as the plaintiff got the advantage of having his sale confirmed on the footing that defendant No. 2 had been recognised by the landlord and he, therefore, cannot now be heard to deny the fact upon which he obtained the advantage in the execution Court. To begin with it cannot be said that the, advantage, if any, obtained by the plaintiff was obtained on any other ground than that stated by the learned Judge to which we have just referred, namely, that the defendants Nos. 1 and 2 had no locus standi and that reduced the question of estoppel to exactly the same principles as the question of res judicata. But there is a further objection to any estoppel, and that is the finding of fact by the learned Munsif, which has not been set aside by the Judge and with which we entirely agree, that the plaintiff got no advantage whatever from the judgment of the learned District Judge. Therefore there is no reason why he should not now seek to establish his rights through the medium of a regular suit.
3. We are, therefore, left with the question whether the wording of the deposit chalan Exhibit 2 is such as to give the landlord notice that Dino Paik was paying the money under Section 170(3), Bengal Tenancy Act, as his in possession by purchase, and that the landlord withdrew the money upon that footing. We think that the statement in this chalan is altogether insufficient for that purpose, and we may note that the applications upon which this deposit was based had been kept back from the cognizance of the Courts. The order sheet, which has not been printed in the appeal before us but which we have looked at from the record, appears to show that defendants Nos. 1 and 2, as mortgagee and transferee of the land respectively, both applied to make the deposit on behalf of the judgment-debtor, and the question before the Munsif was not the question under Section 170(3) because if it had been, she would have been bound to accept the deposit offered by the encumbrancer if the defendant No. 2 was the real tenant, but the question, which of these parsons should be allowed to act on behalf of the judgment-debtor, and he decided' that the purchaser was the proper person to act on behalf of the judgment-debtor and accept, the deposit not under Section 170 as the Munsif erroneously supposed, for in the circumstances of the case there can be no such deposit under Section 170, but as deposit made on behalf of the judgment-debtor; and it must be taken that the landlord took away the money on that footing and did not in any way recognise that the words used by Dino Paik describing himself as the person in possession by purchase indicated that there had been a valid transfer of the holding.
4. Many cases have been laid before us and we are of opinion that the question, so far as it is a question of law, is concluded by authority. In the case of Jotindra Mohan Tagore v. Burga Babe 10 C.W.N. 438 it was held that when a tenure is advertised for sale for arrears of its own rent, the purchaser of the tenure from the tenant has no right to make the deposit under Sub-section 3 of Section 170 of the Bengal Tenancy Act, as he is not a person having interest in the tenure voidable upon the sale, and in the case of Digbijoy Roy v. Ata Rahaman 15 Ind. Cas. 166 : 17 C.W.N. 156 it was held that the acceptance of rent from the transferee of a non-transferable occupancy-holding not as a transferee but as the agent or representative of the original tenant does not amount to the recognition of the validity of the transfer. Against this we are asked to consider the case decided by the Judicial Committee of the Privy Council in Naba Kumari Bebi v. Behari Lal Sen 34 C. 902 : 11 C.W.N. 865 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 4 A.L.J. 570 : 34 I.A. 160 : 6 C.L.J. 122 : 2 M.L.T. 433 (P.C.) and the case of Tarak Das Pal Chowdhry v. Harish Chandra Banerjee 16 Ind. Cas 977 : 17 C.W. If. 163 : 16 C.L.J. 548 which was a case decided by the same learned Judge who decided the case of Digbijoy Roy v. Ata Rahaman 15 Ind. Cas. 166 : 17 C.W.N. 156, to which we have just referred, and a very recent case of Ahmadullah Chowdhury v. Harkaru Saha 27 Ind. Cas. 176 : 20 C.W.N. 39 : 22 C.L.J. 106 where the Full Bench ruling in the case of Dayamoyi v. Ananda Mohan Roy Chowdhuri (.6) has been applied to a case of this nature. The Privy Council case was with regard to statements made in rent receipts which showed that the landlord recognised the transferee as the tenant, although such receipts when particularly examined did not expressly describe the transferee as tenant of the holding. But in that case the rent receipts described the rent paidas rent of the holding and the person paying as occupier of the holding and as paying it on his own account, and that is a very great distinction between that case and this. Conceding that in this deposit the defendant No. 2 described himself as paying rent of the holding and being himself the occupier of the holding he went on to say that he was not paying rent on his own behalf but on account of the judgment-debtor; so that the observations of the Privy Council do not in any way apply.
5. Then as regards the case of Tarak Das Pal Chowdhury v. Harisli Chandra. Banerjee 16 Ind. Cas 977 : 17 C.W. If. 163 : 16 C.L.J. 548 it appears that it was cited by the learned Judges in Ahmadnllah v. Har Karu saha 27 Ind. Cas. 176 : 20 C.W.N. 39 : 22 C.L.J. 106 by a mistake in the head-note of the case, which lays down a proposition almost the reverse of what the learned Judges decided. Bat a reference to the judgment shows us that the question which was decided was, whether such interest or interest of the applicant if the holding is transferable by custom is voidable on the sale and that is another question altogether. That judgment, therefore, was no authority for what was held in the case of Ahmadullah v. Har Karu Saha 27 Ind. Cas. 176 : 20 C.W.N. 39 : 22 C.L.J. 106 and the application of the Full Bench case of Dayamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172 to this question, even if that case did decide anything connected with the question, which is very doubtful, would not serve to make the law any different in 1910 from what was laid down by this Court previous to the passing of the Full Bench decision. If the Full Bench has made any alteration in the law, or laid down any rule different to that contained in the previous cases, it does not seem to us that at the time the deposit was made the law could have been held to be what is somewhat doubtfully stated in this case of Ahmadullah v. Har Karu Saha 27 Ind. Cas. 176 : 20 C.W.N. 39 : 22 C.L.J. 106. Our own opinion is that the Full Bench in the case of Dayamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172 does not in any way touch the question before us. But it is not necessary to go further in detail into the question of law, since it is perfectly clear that Dino Paik did not make the deposit under Section 170(3) and did not make it on his own account and, therefore, the withdrawal of the deposit by the landlord could not operate as recognition of the tenancy.
6. The result is that the appeal must be dismissed with costs.