1. This appeal arises out of a suit by a landlord to recover khas possession of the lands of certain jotes purchased by the defendants-appellants at a sale in execution of a mortgage-decree on the ground that occupancy-holdings are not transferable without the consent of the landlord. The Court of first instance decreed the suit and that decree was confirmed on appeal. The defendants have appealed to this Court.
2. It appears that the lands in suit, which constituted five different occupancy-holdings and stood in the names of several persons, belonged to one Protab Bag. The defendants took a mortgage of the jotes from Protab Bag in July 1895. The plaintiff-respondent, who is the landlord, took a mortgage of the jotes from Protab's mother, Jogeshdari, in March 1897. A rent suit was, however, brought against Protab as the tenant by the plaintiff and the decree was paid up by the defendant by depositing the decretal amount in Court and the same was withdrawn by the plaintiff. Subsequently, the defendants purchased the jotes at sales held in execution of a decree upon their mortgage.
3. The jotes being non-transferable occupancy-holdings, the defendants did not acquire a title to the lands by their purchase at the auction-sale unless their purchase was recognised by the plaintiff. The plaintiff, on the other hand, had money due to him under a mortgage of the jotes executed by Protab's mother, Jogeshdari, in his favour.
4. Under these circumstances, the defendants paid Rs. 200 to the plaintiff and took an assignment of the mortgage from the plaintiff in the name of their mohurrir, one Hari Makhan. The main question raised in this appeal is what is the legal effect of this assignment,
5. The deposit of the amount due under the rent-decree referred to above and the withdrawal of the same by the plaintiff do not amount to any recognition of the defendants as tenants because the defendants had not then purchased the jotes and were in the position of simple mortgagees and the deposit was made in the name of the judgment-debtor. The fact that the plaintiff himself took a mortgage of the jotes would by itself be no evidence of transferability of the jotes because a landlord himself can purchase or take a mortgage of a holding though non-transferable.
6. It is contended, however, on behalf of the appellant, that the defendants by taking an assignment of the mortgage from the plaintiff in the name of their mohurrir redeemed the plaintiffs mortgage, and that the plaintiff, in allowing the defendants who had purchased the jotes to redeem his mortgage, was estopped from denying that they had acquired a right to redeem, in other words, that they had acquired a valid title by their purchase and reference is made to Bigelow on Estoppel, page 685, in support of that contention.
7. No doubt, the mere assignment of the mortgage by the plaintiff to another would not by itself amount to anything more than a representation that the mortgage was valid and could be enforced against the jotes, and it is contended on behalf of the respondent that that is the only effect of the assignment. But in the present case, the plaintiff assigned his mortgage on the jotes to the defendants with full knowledge of their purchase and of the fact that they were taking the assignment in order to perfect their title which was not valid unless recognised by him. The question is whether, under these circumstances, the plaintiff, the landlord, can turn round and say that though he assigned a mortgage on the jotes to the defendants for value, though the defendants took the assignment because they had purchased the jotes and though he was aware of their purchase, the defendants had no right to the jotes because occupancy-holdings were not transferable without his consent. To allow the landlord to do so would, in our opinion, be to encourage a fraud upon the purchaser. We are of opinion that, in the circumstances of the present case, the plaintiff is estopped from denying that defendant had acquired a right to the jotes.
8. It was contended, on behalf of the respondents, that the defendants relied upon the alleged payment of nazar in support of their story of recognition 'of their purchase by the plaintiff, and the payment of the nazar haying been disbelieved by the Courts below, the defendants are not entitled to rely upon the assignment of the mortgage. It is true the defendant's story of the alleged payment of the nazar has failed but it was never the plaintiff's case that there was any agreement that defendant would be recognised on payment of nazar. It cannot be said, therefore, that the recognition of the defendant in this case depended upon the payment of the nazar, although the defendant set up a false case that nazar had been paid.
9. In the written statement, the defendant pleaded estoppel on the ground that the plaintiff himself had taken a mortgage and transferred the same to one Hari Makhan and it would seem that the estoppel there pleaded was with reference to the question of transferability of the jotes. But (as pointed out by the Munsif) the defendant No. 1 in his deposition admitted that Hari Makhan was their benamdar and that the assignment of the mortgage was really taken by them in the name of Hari Makhan, and it is found on the evidence that that id so. The fifth issue raised in the case, vie., 'Is plaintiff estopped from bringing the suit' is wide enough to cover the question of estoppel in the form in which it has been pressed in this Court. In deciding the 5th issue, the Munsif considered the effect of the assignment of the mortgage and held that the assignment could not help the defendants in any way. The defendants challenged the correctness of the above finding in appeal, but the learned Judge overruled the plea of estoppel though on a different ground. The assignment of the mortgage by the plaintiff to the defendant is a fact admitted and found by the Courts below. Under the circumstances, we are of opinion that the mere fact that the true legal effect of the assignment was not precisely formulated in the written statement does not prevent us from giving proper legal effect to the assignment, and doing justice in the case.
10. We accordingly hold that plaintiff is estopped from denying the title of the defend- ants as tenants and, reversing the decrees of the Courts below, dismiss the suit. Under the circumstances of the case, we direct that each party do bear his own costs throughout.