1. This Appeal is directed against a decision by which theSubordinate Judge in reversal of the decree of the Original Court has made adecree in favour of the Defendant in a suit for ejectment. There is nocontroversy as to the circumstances under which the action has been commenced.The Plaintiff alleges that the holding in dispute is non-transferable, and thatnevertheless the original tenant has transferred it to the Defendant by aconveyance executed on the 26th March 1906. He therefore seeks to eject theDefendant as a trespasser. The grounds, upon which claim is resisted, arethreefold : first, that the Plaintiff has recognised the Defendant as histenant; secondly, that the holding is permanent and transferable; and thirdly,that if it is an ordinary occupancy holding, it is transferable by custom or localusage. The Court of first instance found in favour of the Plaintiff upon eachof these points and made a decree in his favour. Upon appeal the SubordinateJudge has reversed that decision upon the first of the points stated and hasdismissed the suit; he has expressed no opinion as to the second and thirdgrounds on which the claim is resisted.

2. On behalf of the Plaintiff it has been contended in thisCourt that upon the facts found there has been no recognition of the Defendantas tenant by the Plaintiff. It is not disputed that on the 17th March 1908 thePlaintiff instituted a suit for rent against the original tenant for the periodbetween April 1904 and December 1907. On the 9th April 1908 the tenant filed awritten statement in which he alleged that he had transferred his interest inthe holding to the resent Defendant on the 26th March 1906. The transfereeappeared in Court at the same time and prayed that he might be added as aDefendant. The Court granted this application and the result was that thetransferee was treated as a party Defendant. On the same day the transfereemade a payment of the amount claimed in the suit to the pleader of thePlaintiff who certified the payment to the Court. The Court thereupon recordedan order that the suit was dismissed on full satisfaction. It is not disputedthat the sum paid to the pleader was on that very day made over by him to thePlaintiff.

3. The Court of first instance upon these facts held thatthe acceptance of the sum paid by the transferee to the pleader of thePlaintiff did not amount in law to a recognition of the validity of thetransfer. The Subordinate Judge has taken a different view and has held thatthe Plaintiff is estopped from questioning the validity of the purchase by theDefendant. On behalf of the Plaintiff this view has been controverter on twogrounds, namely, first, that as the pleader in his petition to the Court statedexplicitly that he had received the money from the transferee marfaiwaree therewas no recognition, and secondly, that the act of the pleader was not bindingupon the Plaintiff as the pleader had no authority to recognise the allegedtransfer. In our opinion, there is no room for reasonable controversy that theacceptance of the sum paid by the transferee did not amount to a recognition ofthe validity of the transfer. It is clear from an examination of the terms ofthe petition that the pleader acted very cautiously. The petition recited thatthe sum had been paid through the transferee. The Bengali word used is marfatwari.The learned Vakil for the Appellant has invited our attention to the cases ofGour Lal v. Rameswur 6B.L.R. App. 92(1870), Wilson v. Radhadulari 2 C. W. N. 63(1897) and Rasamoy Purkait v. Srinath Moyra 7 C. W. N. 132 (1902), where theearlier authorities on the point will be found collected, to show that anacceptance of rent under circumstances similar to those of the present casedoes not in law operate as a recognition of the validity of the transfer. Thecases mentioned undoubtedly support the contention of the Appellant. But thecase nearest in point is that of Khoodeeram Chatterjee v. Rukhinee Boistobee 15W. R. 197 (1871), which is a direct authority for the proposition that whenrent has been received from a transferee not as a transferee but only as theagent or representative of the original tenant, there is no recognition of thevalidity of the transfer. A similar view underlies the decision in Kurani Dasiv. Sajoni Kant 12 C. W. N. 539 (1908).. The view we take I not opposed to thedecision in Baroda Churn Dutt v. Hemlata Dasi 13 C. W. N. 833 (1909., where itwas ruled that acceptance of rent from a mortgagee of an occupancy holding inhis character as mortgagee amounted to a recognition of the validity of themortgage. It is obvious that in that case the money was accepted by thelandlord from the transferee who professed to act in a particular character andthat character was recognised by the landlord. Similar observations apply tothe decision in Thomas Barclay v. Hossein Ali Khan 6 C. L. J. 601 (1907).,where money was accepted by the landlord with notice that it was deposited by atransferee who claimed protection in that character. The decision of theJudicial Committee in Naba Kumati v. Behary Lal : 11 C. W. N.865 : s. c. I. L. R. 84 Cal 902 (1907). upon which much reliance was placed bythe learned Vakil for the Respondent is also clearly distinguishable. In thatcase the money was paid by the occupier who claimed to be a transferee of thedisputed tenure, and the receipt granted to him showed that the landlordrecognised that he made the payment in his character as transferee.Consequently the acceptance of money under such circumstances was equivalent tothe recognition of the validity of the transfer. It has been argued however bythe learned Vakil for the Respondent that the language of the petition isambiguous. And that as the transferee was an infant on whose behalf the rentwas paid by his guardian, the statement in the petition might well beinterpreted to mean that the money was received from the infant the transfereethrough his guardian. We are not prepared to accept this ingeniousconstruction. We cannot overlook the fact that the presumption is that thepleader acted within the scope of his authority. It is now well-settled, as isclear from the decisions in Bhutnath v. Ramlal 6 C. W. N. 82 (1900) andJagapati v. Ekambarn I. L. R. 21 Mad. 274 (1897)., that although a pleader hasno power to compromise a suit unless he is specially authorised in that behalf,he can bind his client by an admission upon a question of fact [Kower Natain v.Sreenath 9W. R. 485 (1868). Rajundet v. Bijai Govind 2 M. I. A. 253 (1839),Hinga Lal v. Mansa Ram I. L. R. 18 All. 3 4 (1896), Venkata Nara Simha v.Bhushya Katlu I. L. R. 22 Mad. 538 (1899, provided that such question fallswithin the scope of the suit in which he has been retained. [Nando Lal v.Nistarini I. L. R. 27 Cal. 428 (1900). Swinfer v. Chelmsford I F. and F. 619;27 L. J. Ex. 382 (1859).In the case before us, the question in controversy inthe suit for rent was the liability of the original tenant Defendant to pay tothe Plaintiff landlord the rent claimed. There was no question as to theliability of the transferee Defendant, much less was there any question as tothe validity of the transfer alleged. Under these circumstances it wouldclearly be beyond the scope of the authority of the pleader to bind his clientby an admission of the validity of the transfer. It was possibly this factwhich led the pleader to act with caution and justifies the language used byhim in the petition. We are therefore of opinion that there has been norecognition of the validity of the transfer in favour of the present Defendant.In this view the decree made by the Subordinate Judge cannot be sustained.

4. The learned Vakil for the Respondent has howeverstrenuously contended that it is possible to support the decision upon adifferent ground. He has argued that if the payment of the 9th April 1908 bedeemed to have been made not by the transferee as such but as on behalf and forthe benefit of the original tenant, there was a recognition of the subsistenceof the tenancy in spite of the transfer of the 26th March 1906. Consequentlythere has been no abandonment of the tenancy and the Defendant is entitled toresist the claim for ejectment on the ground that a subsisting tenancy still inervenes between the Plaintiff and the Defendant. In support of thisproposition, reliance has been placed upon the decision of the JudicialCommittee in the case of Gidhari Lal Roy v. The Bengal Government 12 M. I. A.448 (1868). That decision, however, is clearly distinguishable and is of noassistance to the Respondent. The decision is merely an authority for theelementary proposition that the Plaintiff in an action in ejectment mustsucceed on the strength of his own title and that it is open to the Defendantthough he may have no title, to plead jus tertii to defeat the claim of thePlaintiff. In the case before us, even if it be assumed that the effect of theacceptance of the money paid on the 9th April 1908 is the recognition of thesubsistence of the tenancy up to December 1907, it does not follow that therewas any tenancy in existence at the date of the institution of this suit. It isnot disputed that at the time when the present action was commenced, theoriginal tenant was not in occupation, and the person in possession was theDefendant. It is also not disputed that the Defendant came into occupation onthe assumption that he had acquired a valid title by purchase, and that histransferor had severed his connection with the holding. Under thesecircumstances, the legitimate inference is that there had been an abandonmentof the tenancy by the original tenant. The Defendant, therefore, if the holdingis not proved to be transferable, is a trespasser in occupation and is liableto be ejected. The result is that this Appeal is allowed and the decree of theSubordinate Judge set aside. As the questions raised in the third and fourthissues have been found against the Defendant by the Subordinate Judge, thedecree of the Court of first instance will be restored. In view of the factthat the Defendant paid a sum of money which found its way into the hands ofthe Plaintiff, we direct that each party bear his own costs of the litigationthroughout

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Digbijoy Roy and Ors. vs. Shaikh Ata Rahman and Ors.(01.12.1911 - CALHC)