1. This is an appeal on behalf of the plaintiff in an action for recovery of possession of immovable property. The plaintiff claims by purchase from two persons, the heirs of one Guru Mahali who originally held the disputed lands. The defendant alleges that the vendors of the plaintiff had no title to the disputed lands, that at any rate they had no transferable interest and that he himself has acquired a valid title under a settlement from the landlord after the lands had been abandoned by the original tenant. One of the issues raised in the case was, whether the alleged vendors of the plaintiff had any transferable interest in the lands in suit. The Court of first instance found that the defendant was a trespasser and held that he was not entitled to raise the question of transferability. Upon the merits the Court found in favour of the plaintiff to the extent of a two-thirds share of the disputed lands and made a decree accordingly. Upon appeal the Subordinate Judge declined to decide any of the questions on the merits and held that even if the defendant was assumed to be a trespasser, the plaintiff was not entitled to succeed as he had failed to prove that his vendors had any transferable interest in the disputed lands.
2. The plaintiff has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first, that if the defendant be a trespasser, he had no right to raise the question of transferability; and secondly, that inasmuch as the plaintiff according to the finding of the first Court has purchased only a two-thirds share of the entire holding no question of transferability arises. In my opinion each of these contentions is well-founded and must prevail.
3. As regards the first of these questions, it is to be observed that the Subordinate Judge has not determined tin truth or otherwise of the allegation of the defendant that he got a settlement from the landlord after the original tenant has abandoned the holding; he has proceeded on the assumption that the defendant is a traspasser. The present appeal, therefore, must be determined upon that basis. Now if the defendant be a trespasser as alleged by the plaintiff, he is in no way interested in the holding and in my opinion it is not open to him to raise the question of transferability, a question which can be raised only by the landlord or by persons deriving title from the landlord. In support of this view it is sufficient to refer to the decision of this Court in the cases of Basarat Mandal v. Sabullah Mandal S.A. No. 555 of 1897 decided by Ameer Ali and Pratt, JJ., on the 14th July 1898 : 2 C.W.N. 279, S.N.) and Ambica Nath Acharjee v. Aditya Nath Moitra 6 C.W.N. 624. In the first of these cases the plaintiff claimed title to a holding on the basis of a purchase and the defendant resisted the claim on the ground that the plaintiff did not acquire any valid title inasmuch as the land was not transferable. It was found as a fact that the defendant was a trespasser; the learned judges held that it was not open to the defendant to raise the question of transferability. They observed that the question of transferability was one that might be raised by the landlord, but could not be legitimately raised by a trespasser like the defendant. The plaintiff had purchased the tenant's right and whatever might be the precise nature of the interest it had a market-value and the transfer was capable of being recognised by the landlord. The plaintiff had, therefore, a right to be protected in the enjoyment of his purchase against all the world except possibly his landlord. The same view was taken in the second case Ambica Nath Acharjee v. Aditya Nath Moitra 6 C.W.N. 624 in which it was pointed out by Sir Francis Maclean that in all the cases cited upon the question of transferability the question was raised between landlord and tenant. The view taken in these two cases, which in my opinion is well-founded on principle, is not opposed to the decision of this Court in the case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha 24. C. 355 : 1 C.W.N. 396 in which it was ruled that in the absence of custom or local usage to the contrary, a raiyati holding in which the raiyat has only a right of occupancy is not saleable at the instance of the occupancy raiyat or any creditor of his other than his landlord seeking to obtain satisfaction of his decree for arrears of rent. Nor is this view opposed to the decision in the case of Durga Charan Mandal v. Kali Prasanna Sarkar 26 C. 727 in which it was ruled that a judgment-debtor might take an objection on the ground of non-transferability even after confirmation of sale. The two cases referred to in the judgment of the Subordinate Judge do not really throw any light upon the question in controversy between the parties. The case of Ayenuddin Nasya v. Srish Chandra Baneryee 11 C.W.N. 76 merely lays down that the question of transferability could not be raised as against the purchaser of an occupancy holding by a defendant who claimed to have derived title from a co-sharer landlord as he had merely purchased the right, title and interest of the judgment-debtor and therefore occupied no higher position than the judgment-debtor himself; whether the decisions in these cases can be entirely reconciled with the principle which underlies the cases of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha 24 C. 355 : 1 C.W.N. 396; Durga Charan Mandal v. Kali Prasanna Sarkar 26 C. 727 and Majed Hossein v. Raghubur Chowdhry 27 C. 187 it is not necessary for me to consider on the present occasion. The case of Peary Mohan Mukerjee v. Jote Kumar Mukerjee 11 C.W.N. 83 has also obviously no bearing upon the question raised before me. It was ruled in that case that whim occupancy holdings are not transferable by custom the person who purchases them in execution of a money-decree purchases nothing because they are not transferable as between the judgment-debtor and the decree-holder. Manifestly this does not help us in the decision of the question, whether an objection on the ground of non-transferability can be taken at the instance of a trespasser. The learned vakil for the respondent placed some reliance upon the observation of this Court in the case of Ram Gopal Aditya Deb v. Rajan Sadagar 6 C.L.J. 43 at page 45. The head note to the report, namely, that the question of transferability of a holding can arise as well between the landlord and the tenant as between the tenant and a third party is too broadly formulated. The facts of the case show that the question of transfer-ability arose there between the purchaser of the holding and another person who claimed to have derived title by purchase at a sale in execution of a decree for arrears of rent at the instance of the landlord. It cannot be said, therefore, that the question arose there, as in the case before me, between the transferee of the occupancy holding on the one hand and a trespasser on the other. There the contesting parties were the usufructuary mortgagee from the tenant on the one hand and a person who had derived title at the instance and by the action of the landlord. The case, therefore, is perfectly consistent with the view that the question of transferability can be raised not between the transferee of the holding and a trespasser, but between the transferee of the holding and either the landlord or some person deriving title from the landlord, or by judicial proceedings held at his instance. Tested in the light of this principle, it must be held that the view taken by the Subordinate Judge cannot be supported. The first ground taken on behalf of the appellant must, therefore, prevail.
4. As regards the second contention it is equally clear that the objection is well-founded. If as a matter of fact the plaintiff by his purchase from two out of three representatives of the original tenant has acquired title only to a two-thirds share of the lands comprised in the holding, prima facie the tenancy has not yet terminated. The tenants of the holding are the purchaser and the representative of the original tenant who did not join in the conveyance. On the principle then of the decision of this Court in the case of Kabil Sardar v. Chunder Nath Nag Choudhary 20 C. 590 the plaintiff purchaser is entitled to recover possession, at any rate as against a trespasser, if not also against the landlord and his representatives in interest.
5. The result, therefore, is that this appeal must be allowed, the judgment and decree of the Subordinate Judge set aside and the case remanded to him in order that all questions on the merits may be considered and decided.
6. Costs of this appeal will abide the result.