ASGHAR HUSAIN Vs. PAL AHIR

JUDGEMENT

(1.) THE facts of the case out of which this appeal has arisen are as follows. THE predecessors in title of the defendants respondents were occupancy tenants of a certain holding. On the 4th of June, 1885, they mortgaged this holding describing it as a fixed-rate tenure in favour of the zamindar of the village. A suit was brought to enforce the mortgage in December, 1895, and on the 27th of July, 1896, a decree for sale was passed. On the 23rd of August, 1897, the property was sold as a fixed-rate tenure and was purchased by the plaintiff, a stranger to that suit. THE judgment-debtors objected to the zamindar being allowed to bid at the sale. On the 2nd of November, 1897, a sale-certificate was granted to the plaintiff. From that date up to the 16th of October, 1908, the plaintiff had been in possession of the holding, paying rent to the zamindar.

(2.) ON the latter date he was dispossessed by the defendants, who asserted that the land was their occupancy tenure. Hence the present suit was brought by the plaintiff s to recover possession. The court of first instance and the lower appellate court decreed the claim. ON second appeal to this Court the learned Judge before whom the case came dismissed the suit, holding that, as a right of occupancy could not be sold in execution of a decree, the plaintiff acquired no title to the holding, and therefore he was not entitled to a decree in a suit for ejectment against the defendants. Two points are pressed before us. The first is that the judgment-debtors are estopped from saying that the tenure was an occupancy tenure and not a fixed-rate tenure ; and secondly, even though no title passed to the plaintiff by the auction-sale, still, on the 16th of October, 1908, the defendants had no title themselves, and therefore the plaintiff is entitled to a decree for possession against them on the strength of his possessory title. We think both these contentions are sound. It is clear that the defendants as well as the zamindar gave out that the tenure was a fixed-rate tenure, that is, one transferable in execution of a decree. The judgment-debtors in the mortgage suit raised no objection whatsoever either in the course of the suit or in execution proceedings on the ground that the tenure was not transferable under law. The plaintiff, acting on the belief that the tenure was a fixed-rate tenure, as stated by the parties to the mortgage-deed and the mortgage suit, purchased it. We think that it does not lie in the mouth of the defendants to say now that the tenure was not a fixed-rate tenure. Furthermore, it is quite clear that for about eleven years the defendants had been out of possession. The plaintiff has held possession and has been accepted by the zamindar as a tenant and has paid rent for the holding. Any right which the defendants had as tenants disappeared long ago, and when, on the 16th of October, 1908, they dispossessed the plaintiff, the latter had at least a possessory title, while the defendants had no title whatsoever. ON the basis of his possessory title alone the plaintiff would be entitled to a decree. We allow this appeal, set aside the judgment of the learned Judge of this Court, and restore the decree of the lower appellate court. The plaintiff will have his costs throughout.