The Petitioner is the landlord. He obtained a decree for arrears of rent against his registered tenant in August 1912 and advertised for sale the occupancy-holding in arrear. The Opposite Party deposited the decretal amount under sec. 170, (3) of the Bengal Tenancy Act on the allegation that he had purchased the holding from the judgment-debtor in January 1909 and had been in possession ever since. The Petitioner opposed the deposit but the learned Munsif allowed it and relied on the case of Tarak Das Pal v. Harish Chandra Banerjee. It is contended before us that the said case is distinguishable as the purchaser had been in possession for more than 12 years to the knowledge of the landlord, whereas in this case the possession did not exceed three or four years. The learned Judges, however, did not rely on the possession for more than 12 years: They say “it is not material for the purpose to consider * * whether he has acquired by possession for a period longer than 12 years the status of a tenant of a non-transferable holding.” The learned vakil for the Opposite Party contends that the ruling of the Full Bench in the case of Dayamayi Dasi v. Ananda Mohan Roy and the analogous cases supports his right: One of the questions referred was “whether a right of occupancy which is not transfer able by custom or local usage is a right which can be transferred at all”? and it was answered in the affirmative subject however to the qualification that “where the transfer is a sale of the whole holding, the landlord in the absence of his consent is ordinarily entitled to enter on the holding.” The landlord therefore can terminate the purchaser's interest at any time and his right to do so is independent of an execution sale. We do not think however that on that account the interest is not one which is voidable on the sale. The effect of the sale is to give the auction-purchaser the right to oust the transferee and it has been held in the case of Tarak Das Pal v. Harish Chandra Banerjee that fact makes the interest of the purchaser one that is voidable on the sale. If that be so the purchaser has an interest which is voidable on the sale and the deposit was quite competent. The Rule is therefore discharged with costs one gold mohur.
Rule discharged.