1. This is an appeal on behalf of the defendants Nos. 5 and 6 in an action for recovery of possession of certain lands which were originally ghatwali chakran lands and situated in the zemindari of the Maharaja of Burdwan.
2. It appears that the defendant No. 1 was the ghatwal of these lands and on the 24th January 1899 in execution of a decree for money against him, his right, title and interest in these lands were sold and purchased by the plaintiff. The plaintiff alleges that at that time defendant No. 1 had obtained a transferable right in these’ lands by virtue of a kabuliyat executed by him in favour of the Maharaja on the 5th September 1896.
3. The whole question in dispute is as to the nature of the right created by this kabuliyat. If on the day of the auction-sale the defendant No. 1 had acquired a valid transferable right under this dominant, the plaintiff, as purchaser of that right, is entitled to succeed If on the other hand it is found that defendant No. 1 had not at that time acquired any right which was capable of being transferred, the plaintiff has taken nothing and his suit is bound to fail. That document recites that at the time of its execution, negotiations were proceeding between the Government, the zemindar and the ghatwal for the resumption of these lands. It is quite clear, however, that the lands at that time had not been resumed and transferred to the zemindar. It is also quite clear from the lease, which is the counterpart of this document, and was executed on the 29th January 189,9, that even up to that time the resumption had not taken place.
4. We must, therefore, proceed on the assumption that on the 5th September 1896, and up to the 24th January 1899, the defend-ant No. 1 was the ghatwal in possession and he was bound to perform the services as ghatwal to the Government. The lease expressly recites that if the Government for any reason does not release the executant from the performance of the ghatwali service in the manner aforesaid, he would not be bound by the kabuliyat executed by him and that it would be inoperative. There cannot be any possible doubt that up to 24th January 1899, the defendant No. 1 had not been released by the Government from the performance of the ghatwali service. It is manifest, therefore, that on the 24th January 1899 the defendant No. 1 had not ceased to be ghatwal and no valid rights had been created in his favour up to that date under the document of the 5th September 1696. If after the 24th January 1899, when the plaintiff purchased, there has been any transaction between the Government and the zemindar and the ghatwal, it is impossible to say that the plaintiff could derive any benefit from such transaction. Her title dates at the earliest from the 24th January 1899; she is purchaser of the right, title and interest of the judgment-debtor as they stood on that particular date. We have found that on that date the judgment-debtor had no transferable right; the plaintiff, therefore, has taken nothing by her purchase and cannot succeed.
5. The result is that this appeal must be allowed and the suit dismissed with costs in all the Courts.