1. The plaintiff in the suit out of which this appeal has arisen prayed for declaration of his title to the lands in suit, as a person who had obtained settlement of the same as a tenant from the landlords, on the allegation that he was dispossessed by defendant 1 who had, as the purchaser of the lands in suit in execution of his mortgage decree against the tenant—who had only non-transferable occupancy right in the lands—obtained possession of the same. The case of the plaintiff was that the lands in suit appertained to the non-transferable occupancy holding of one Bhagaban Moral. After Bhagaban's death the holding was abandoned by his widow Sita Sundari, and the lands comprised in the holding were settled with the plaintiff by the landlords on 12th Magh, 1321 B.S; the settlement so made by the landlords was evidenced by a kabuliyat executed on the date aforesaid, which contained a statement to the effect that the tenant having abandoned the holding, the landlords had the right to settle the lands. As indicated above defendant 1 claimed to be in possession of the lands as the purchaser at a sale in execution of his mortgage decree against Bhagaban Moral, the tenant. The tenant having no transferable right in him, defendant 1 was, according to the plaintiff, a mere trespasser. The claim as made by the plaintiff in the suit, was resisted by defendant 1. The fact of abandonment as asserted by the plaintiff was denied by the defendant; the title of the plaintiff to the lands in suit by virtue of the kabuliyat of 1321 B.S was also contested. It is to be noticed that the only contesting defendant in the suit was defendant 1, who according to the plaintiff had no title in him, being the purchaser of a non-transferable occupancy holding. The landlords who were made defendants in the suit, supported the plaintiff, a fact specifically noticed by the trial Court in its judgment.

2. The history of the litigation, appearing from the judgment of the Courts below, discloses a determined and persistent attempt on the part of defendant 1 to obtain possession of the lands in suit, although his title to the same as a purchaser in execution of his own mortgage decree was not effective. There were two suits brought by the defendant against the plaintiff, in both of which the decision of the Courts went against the plaintiff, on the ground that the tenant on the lands Sita Sundari, had not abandoned the holding. The kabuliyat under which the plaintiff claimed to be the tenant, was found to be ineffective, inasmuch as there was no abandonment by the tenant of the lands appertaining to the holding. It is worthy of notice in this connexion, that the landlords obtained decrees for rent against the plaintiff on the strength of the kabuliyat of 1321 B.S, and on one occasion, the decretal amount had been deposited in Court by the plaintiff, and was withdrawn by the landlords.

3. The questions that appear to have been raised on behalf of defendant 1 in the Court below, were many and various. It was in the first place urged, as it has been urged before us, in support of the decision of the Court of appeal below, dismissing the plaintiff's suit, after reversing the decision of the trial Court, which passed a decree in favour of the plaintiff entitling him to recover khas possession of the lands in suit, by evicting the defendants therefrom, that the plaintiffs claim in suit was barred by the rule of res judicata.

4. In our judgment, there is no substance in the plea of res judicata as raised on behalf of the contesting defendant in the suit. Apart from the position that the previous suits of 1917 and 1924 were tried in the Munsif's Courts, the cause of action, and the fact of abandonment upon which the plaintiff's claim in the present suit instituted in the Subordinate Judge's Court, came into existence after the decision of the previous suits. The complete abandonment by Sita Sundari of the holding, dates from the decision in the suit of 1924; and the trial Court was therefore right in holding that the abandonment upon which the present claim was founded, occurred after the disposal of the previous suits. The argument in support of the appeal by the plaintiff to this Court, that the bar of res judicata did not apply to the plaintiffs claim in suit must accordingly be accepted. The point arising for consideration next is whether there was abandonment of the holding by Sita Sundari. On the facts found by the Courts below, regard being had to the position that Sita Sundari's possession after execution of the mortgage decree by defendant 1 was permissive, the defendant having allowed her to possess the homestead, at her entreaty, it must be, on the authority of decisions of this Court, held as a matter of law that there was an abandonment of the holding: see in this connexion Jogesh Chandra v. Radha Gobinda Rai . AIR 1928 Cal 848.

5. There having been abandonment of the holding, the question then arising for consideration was, whether the settlement with the plaintiff of the lands in suit, as evidenced by the kabuliat of 1321 B.S could be treated as an effective settlement, regard being had to the provisions contained in Section 43 of the Transfer of Property Act. The landlords defendants in the suit supported the plaintiff, and upon the finding arrived at by the trial Court, not reversed in appeal, the landlords withdrew the rent deposited by the plaintiff as tenant, after a decree for rent was passed against him. In view of the above position, the settlement with the plaintiff which was ineffective at its inception in the year 1321 B.S became effective and valid under the law, as soon as there was an abandonment of the lands in suit by the tenant, Sita Sundari; and the validity of the settlement was recognised by the landlords themselves by withdrawing rent deposited by the plaintiff as tenant, after a decree for rent had been passed against him. As the trial Court observed, the case is governed by the principles underlying Section 43 of the Transfer of Property Act, and the imperfect title created by the kabuliat of 1321, was perfected in consequence of abandonment of the holding by the tenant. In our judgment, the plaintiff has established his title to the lands in suit as a tenant, in respect of the same, and there was no such preferential title in defendant 1 which could prevail against that of the plaintiff. The decree obtained by some of the cosharer landlords in the presence of the other cosharers, against defendant 1 could not confer any title on the defendant, seeing that the plaintiff's title must be taken to have been perfected by the recognition of the plaintiff as the tenant, before there was a semblance of a title in defendant 1.

6. The above view of the case before us, entitles the plaintiff to a judgment in his favour, so far as the relief claimed by him in the suit is concerned. It remains only to consider some observations made by the Court of appeal below, which are apparently findings of fact in favour of defendant 1 in the suit. In regard to the kabuliat of the year 1321 B.S evidencing settlement with the plaintiff by the landlords, the Court of appeal below has observed that the kabuliat was a collusive and mala fide document; the rent decrees passed against the plaintiff have also been characterised as collusive. The exact import of this is not clear, seeing that there was no case of collusion or want of bona fides involved in the case. The case before the Court, regard being had to the pleadings of the parties, was that there was no abandonment of the holding by the tenant Sita Sundari, the widow of Bhagaban Moral, the original tenant; and that the landlords had never obtained khas possession of the lands appertaining to Bhagaban Moral's tenancy, the lands in suit, and could not therefore grant any settlement to the plaintiff; the kabuliat of 1321 and the rent decree, obtained by the landlords were therefore of no avail to the plaintiff.

7. The material issues raised for trial in the case were directed to these matters, and were not, and could not, have any bearing on any question of fraud, collusion or want of bona fides. Furthermore, for the purposes of the present litigation, collusion and want of bona fides, as noticed by the Court below, were wholly beside the points at issue, regard being had to the position taken up by the landlords, defendants in the suit. These landlords, as noticed by the trial Court, supported the plaintiff. Furthermore it could not be said that there was any fraud or collusion in the matter of the recitals in the kabuliat of 1321 B.S: there was no concealment by any party, nor was there any act fitted to deceive. There was of course the statement as to abandonment of the holding by the tenant-regarding which it could, at most, be said that there was a misrepresentation on a mixed question of law and fact. The kabuliat was followed by rent decrees, and with reference to one of these decrees, it cannot but he held that the landlords having withdrawn the rent deposited by the piaintiff as tenant, there was recognition by the landlords making the settlement in favour of the plaintiff complete and operative. We are accordingly of opinion that the observations contained in the judgment of the Court of appeal below, in which the word collusion has been used, and the expression want of bona fides has also been used, do not conclude the case against the plaintiff in any way and cannot be used in favour of defendant 1 for the purpose of supporting his possession of the lands in suit, wholly unsupported by any title.

8. In our judgment, the conclusion we have arrived at, as mentioned above, is one in consonance with the justice of the case before us. The plaintiff's title, originating from a settlement from the landlords or their agent, which settlement was recognized by the landlords by acceptance of rent, could not be allowed to be defeated by a person in the position of defendant 1, the purchaser of lands appertaining to a non-transferable occupancy holding, and who has since his purchase been successful in keeping the plaintiff out of the lands, by asserting that the holding had not been abandoned, contrary to his own acts, evidenced by his obtaining possession as the purchaser in execution of his mortgage decree, and using the permissive possession of the widow of the original tenant, as a shield against the plaintiff's claim to possession. In the result, the appeal is allowed, the decision of the Court of appeal below, dismissing the suit of the plaintiff-appellant is set aside; and the decision and decree of the trial Court passed in his favour are restored. The plaintiff-appellant is entitled to get his costs in the litigation throughout, including the costs in this appeal, from defendant 1, respondent in this Court.

R.K

9. Appeal allowed.