JUDGMENT Mitra, J. - Feloo Khan and Rupjan were holders in occupancy right of the lands in suit--Rupjan of 2 annas and Feloo Khan of 14 annas. The holding, it has been found in this case, was nontransferable by custom or usage. Feloo Khan, however, mortgaged the entire 16 annas to the Plaintiff in 1896. The Plaintiff brought a suit on the mortgage, making the landlords Defendants 3 and 4 in that case, parties and asked for the sale of a 14 annas share of the holding on the ground that the said Feloo Khan's interest extended only to 14 annas. The suit was resisted by Defendants 3 and 4, the landlords, who pleaded, inter alia, that the holding was nontransferable. The Court, however, declined to enter into the question of non-transferability and said in its judgment. "The landlords can step in only after the sale, in case there be no custom about the transferability of occupancy holdings and that would be a question between the purchaser and the landlords." In the same breath, however, the Court directed a sale of the 14 annas share of the holding and held that though Defendants 3 and 4 were not personally liable, the property could be sold as theirs, as they were in possession. The property was actually sold and was purchased by the Plaintiff himself. He was put in formal possession, but could not get actual possession. The Plaintiff's suit is for recovery of possession and the principal contesting Defendants are Nos. 2 and 3, the landlords. 2. It has been found by the Subordinate Judge that the holding was non-transferable and could not pass under the sale ; and as to the applicability of secs. 13 and 244, C. P. C., on account of judgment and execution proceedings in the mortgage suit, the Subordinate Judge referred to the exclusion by the former Munsif from trial of the question of non-transfer-ability and held that there was no bar to the trial of the question in the present suit. 3. The only point that has been argued before us has reference to sec. 3. The only point that has been argued before us has reference to sec. 244, C. P. C., and it has been contended by the learned vakil for the Appellants that the Defendants not having raised the question of non-transferability in the execution proceedings in the mortgage suit were barred from raising it in the present suit, as they were also the Defendants in the previous case. In the case of Bhiram Ali Sheikh v. Gopi Kant Saha 1 C. W. N. 396 : s. c. I. L. R. 24 Cal. 355 (1897) and Nil Kamal Mukerjee v. Jahnabi Chowdhurani I. L. R. 26 Cal. 946 (1899), this Court decided that the Defendant in a suit is entitled to raise a question for defending his title, even if he did not raise it in a execution proceeding in which he was a party notwithstanding he could have raised it in such proceeding. The words of sec. 244, C. P. C., go to show that that section does not apply as a bar to an adjudication of a question raised by a party not seeking such adjudication as a Plaintiff but resisting the Plaintiff's claim as a Defendant. 4. We see no reason why we should not follow the judgments in the two cases referred to by us. The question raised in the present case is the same as was raised in the case of Bhiram Ali Sheikh v. Gopi Kant Saha 1 C. W. N. 396 : s. c. I. L. R. 24 Cal. 355 (1897). In that case the Defendant was the holder of an occupancy jote. In execution of a decree against him the holding was sold. He could have raised an objection to the sale in the execution proceedings but he did not, and, notwithstanding that the question might have been adjudicated in the execution proceedings, he was allowed to come in in the subsequent suit. In the present case, the landlords, the Defendants, were no doubt parties in the previous suit, but they were not bound to bring forward their objection as to the non-transferability of the holding although, as a matter of fact, they did raise it; but the Court declined to decide it. We think for these reasons that the judgment of the Subordinate Judge is right and that this appeal should be dismissed with costs.