- (1.) This appeal by the Defendant is directed against a judgment of Mookerjee J., dated June 14, 1950, passed in S.A. No. 300 of 1947.
(2.) The facts are not in controversy and may be stated as follows: An occupancy holding, which is the disputed property, was held by one Maneshwari Dasi under the landlords, Parijat Charitable Trust Estate, represented by the receiver Raja Raj Krishna Deb Bahadur. The latter instituted a suit for recovery of rent, being Rent Suit No. 659 of 1943, against Maneshwari Dasi, in the First Court of the munsif at Diamond Harbour. The suit was duly framed under the provisions of Section 148A of the Bengal Tenancy Act (hereinafter called the Act). During the pendency of the suit for rent, on June 9, 1943, Maneshwari Dasi sold the whole of the occupancy holding to Bireshwar Deb Sarkar, husband of the Plaintiff, Radharani Deb Sarkar. Notice of the transfer of the occupancy holding under Section 26C of the Act was served on December 12, 1944.
(3.) The landlords, Parijat Charitable Trust Estate, obtained a decree in the said Rent Suit No. 659 of 1943 on August 31, 1943, and proceeded to execute the decree in Rent Execution Case No. 1446 of 1943 and put up the occupancy holding to sale on March 6, 1944, when the Plaintiff purchased the said holding. Bireshwar Deb Sarkar, the transferee, was not made a party to these proceedings. The Plaintiff took possession through court on June 9, 1946, and was resisted by the Defendant Appellant. The Plaintiff caused to be served on the' Defendant notice under Section 167, Bengal Tenancy Act. and thereafter brought the suit, out of which this appeal has arisen, for declaration of her title and for recovery of khas possession of the said holding. The defence of the contesting Defendant Appellant was that, on April 23, 1934, the said Maneshwari Dasi had granted a lease of the disputed property to himself and his nephew and that, on a partition, he has got the entire property in his share; that as the said Bireshwar Deb Sarkar, the purchaser of the said occupancy holding, had not been made a party, either in the rent suit or in the rent execution proceedings, the decree and the sale, at which the Plaintiff had purchased, had not the effect of a decree for rent or of a rent-sale under the provisions of the Act, and the Plaintiff, by her purchase, had not acquired the occupancy holding free from all encumbrances, but had merely purchased the right title and interest of the judgment debtor, 'Maneshwari Dasi, which was non-existent at the time and, as such, the Plaintiff had no title to the disputed occupancy holding, the title having remained with the Plaintiff's husband, Bireshwar Deb Sarkar.;