1. As between the plaintiffs and the defendants, apart from any settlement by the landlords, the plaintiffs have the better title. The plaintiffs purchased what must be assumed to be a non-transferable occupancy holding from the heirs of Sadali, who is found to have been the original tenant, and their conveyance is dated the 11th January 1912. By a conveyance dated the 18th January of the same year the defendants purported to purchase the holding from Abdul Khan. The latter had married Sadali's granddaughter, but it is conclusively found that he had no right, title or interest in the holding. The defend-ants, therefore, purchased nothing.
2. But then the defendants were the first to obtain settlement from the landlord. It is true that the landlord a few days later again settled the land with the plaintiffs, but, says the learned Subordinate Judge, the plaintiffs took no advantage thereby. His reason is that upon the sale of the holding by Sadali's heirs, the original tenancy came to an end and the land must be treated as having been abandoned. It was, therefore, open to the landlord to re-enter and settle the land with whom he pleased. Having settled it with the defendants, he had no right or power to grant a lease to the defendants. In that view the learned Subordinate Judge revised the Munsif's decree and dismissed the suit.
3. The plaintiffs have appealed to this Court and on their behalf it was argued that both the so called settlements took place before the end of the agricultural year in which the abandonment occurred. Reference was made to Section 87 of the Bengal Tenancy Act. But it has been held that a landlord need not have recourse to the provisions of that Section and is entitled to enter upon land which has in fact been abandoned, Manohar Pal v. Ananta Moyee Dasya 20 Ind. Cas. 198 : 17 C.W.N. 802.
4. Then it was argued that the Munsif was right in holding that what the landlord settled with the defendants was Abdul Khan's holding and as Abdul Khan had no holding the defendants got nothing. But if there was a settlement it related to the land and the description of it as Abdul Khan's holding would merely be fulsa demonstratio.
5. I am disposed, however, to be of opinion that the Munsif was right, if not in his reasoning, at any rate in his conclusion. It seems to me that the so called settlements may be regarded in this light, that they merely signify the consent of the landlord to the transfers respectively set up by the parties. In that view the consent operates to validate and confer the title derived from the true owner; but can have no validating effect upon the title derived by the defendants from the pretended owner.
6. I would, therefore, discharge the judgment and decree of the Subordinate Judge and restore the decree of the Munsif with costs in this Court and the Court below.
7. I agree.