These two appeals have been heard together, and we shall deliver one judgment in the two appeals as the points that have been raised and argued are common to both. The Appellant before us acquired his interest in the property at a sale held in execution of a mortgage-decree on the 17th June 1907.
The main question before us is—are the Respondents estopped from raising the question as to whether the interest that the Appellant purchased at the sale in execution is subject to a permanent tenancy in favour of the Respondents? But before considering the main question raised in the appeal No. 653 of 1911, we will dispose of an objection that has been raised to the competency of that appeal.
The case out of which the appeal No. 653 of 1911 arises has been before this Court. On that occasion, the case was remanded to the lower Court and directed to be re-heard.
On the former appeal to this Court, an objection was taken as to the competency of the appeal; but that objection was overruled and this case together with other analogous cases was remanded to the lower Court with this direction “that these appeals must be allowed and the cases remanded to the Court below in order that the applications may be dealt with as proper applications under sec. 244 of the Civil Procedure Code.”
Sec. 244 of the old Code is for the present; purposes in identically the same terms as sec. 47 of the present Code. The Respondent, however, objects that the present application is one under Or. 21, r. 98, of Sch. I to the Code of Civil Procedure and that therefore there is no appeal from the order of the lower Court.
Having regard, however, to the terms of the order remanding the case to the lower Court and to the fact that the proceedings in that Court are headed as being under sec. 47 of the Code of Civil Procedure, we do not think it is open to us to go into the matter. We therefore overrule the objection as to the competency of the appeal.
No such objection arises in the other appeal that is now before us which is an appeal from an original decree. Now, as we have already stated, the Appellant purchased the property at a sale in execution of a mortgage-decree. That sale took place in a suit (No. 57 of 1904), and the Respondent Rasik Lal Sadhukhan was Defendant No. 23 in that suit.
By the plaint in that suit, the Plaintiff in para 7 alleged that the tenant-Defendants to that suit had taken their tenancies from the mortgagor after the date of the mortgage to the Plaintiff and accordingly he prayed amongst other reliefs that the property might be sold free from the tenancies. By para 3 of his written statement filed in that suit, the Respondent Rasik Lal alleged that he had acquired the interest of certain persons named Rana which was a permanent tenancy in a portion of the property, and subsequent to the mortgages he had obtained from the mortgagors a patta at the same rent.
It appears to us to be quite clear that the case the Respondent Rasik Lal was setting up in his written statement was that, he held a permanent tenure created prior to the mortgages, which was confirmed by a confirmatory lease after the date of the mortgage.
The issue settled in that suit comprised the following issue—No. 11: Are the leases created by Defendants Nos. 1 and 2 in favour of the tenant-Defendants, including Defendants Nos. 4 and 5 after the mortgages in suit, valid and binding on the Plaintiff? Are the properties saleable under the Plaintiff's mortgages free from all incumbrances under the said leases? Are some of these leases prior to the Plaintiff's mortgages?
By his judgment in that suit the learned Judge found in answer to the issue No. 11:—“The other Defendants are subsequent incumbrancers and they can redeem the Plaintiff's mortgage, if they like, or share in the surplus sale-proceeds.”
By the decree passed in that suit, it was ordered that “in default of payment to the Plaintiff of the amount therein mentioned, the mortgaged properties will be sold free from all incumbrances.” The property was subsequently sold by order of the Court and the Appellant became the purchaser.
The sale-certificate to him is dated the 3rd October 1907, and is not made subject to any tenancies whatsoever. On these facts it seems to us clear that the Respondents are now estopped from saying that their tenancy is prior to the interest purchased by the Appellant at the sale by the Court.
This matter is, in our opinion, directly in issue in the former suit and decided against the Respondent Rasik Lal, and the decree in that suit ordered the sale of the property free from the tenancies which were set up by the Respondent Rasik Lal in his written statement. In our opinion it is not open to the Respondent to go into the question again on these present appeals.
As to the other questions that have been raised in these appeals, the next question id as to the right of the Respondents to the buildings on the land.
It is contended on behalf of the Appellant that under sec. 108, cl. (h), of the Transfer of Property Act, the right of the tenant to remove fixtures must be exercised during the continuance of the lease. But the provisions of the section are subject to local usage. In the case of Ismai Kani Rowthan v. Nazarali Saheb(1), it was pointed out that the section only provides for the tenant removing fixtures during the continuance of the lease, and nothing is said as to the rights of the parties in respect of such things after the determination of the lease, if they have not been already removed by the lessee. The learned Judges observed as follows:—“The question may arise whether the tenant forfeits all his rights in such things if he has not so removed them, and in the absence of any contract on that point, the question will have to be solved with reference to the ‘local usage,’ whatever may be the precise sense in which that expression is used in sec. 108. According to the customary or common law of the land as laid down in In the matter of the Petition of Thakoor Ch. Pramanik(2) the option in such cases will be with the lessor either to take the building on paying compensation, or if he is unwilling to pay compensation to allow the tenant to remove the building.” In that case-the lessor did not object to the removal of the building, and the only question was, whether the tenant was entitled to compensation and the question was-decided against the tenant. But the view taken of the right of the tenant to remove buildings if he has not removed them before the determination of the lease appears to be an equitable one and in accordance with the usages and customs of the country as laid down by the Full Bench in the case of Thakoor Pramanik. The leases in these cases were not determined by any notice to quit, and the decree in the mortgage-suit, under which the Defendants lost their rights, did not give them any opportunity to remove the buildings. Under the circumstances, we think they should be allowed to remove the buildings (three months' time being allowed for the removal thereof) unless the Appellant chooses to take the buildings on paying compensation.
The building of the Respondents in Reg, Appeal No. 295 of 1910 has however been acquired under the Land Acquisition Act, and Rs. 3,621-6-7 has been awarded as compensation for the building. It is contended on behalf of the Appellant that the Respondent is entitled (if at all) to the value of the materials only after the demolition of the building. Under the peculiar circumstances, we think that the Respondents should-get one-half of the amount awarded on account of the building under the Land Acquisition Act. As for the compensation allowed for the land, we think the Appellant is entitled to the whole of it. Interest will run on the said amounts at the rate of six per cent, per annum from the date, when the said amounts were withdrawn by the Respondents till the date of payment. Another point, that was raised in the appeal No. 295 of 1910, was that as the Respondent Rasik Lal was merely a benamdar for his father, the estoppel created against him by the judgment and decree in the mortgage-suit does not bind the other Respondents to appeal No. 295 of 1910.
But in our opinion that is not so.
We agree with the view expressed by Mookerjee, J., in Ram Behari Sarltar v. Surendra Nath Chose that the benamdar-Defendant in the mortgage-suit represented the interests of the persons beneficially entitled. In the result, the order and decree appealed from must be varied in accordance with the above remarks.
There should be no order as to the costs of this appeal or of the proceedings of the Court below.
Decree varied.