JUDGMENT : RICHARDS, J. 1. This appeal arises out of a suit for possession of immovable property. The merits of the case seem to be with the plaintiff, who obtained a decree in both the courts below. It appears that the defendants or their predecessor-in-title mortgaged the property now in suit. In the mortgage the property was described as being held as a fixed rate tenancy. A suit was instituted on foot of the mortgage. A decree was granted and the property was sold as a fixed rate tenancy. The auction purchase took place on the 23rd August, 1897, and the sale was confirmed on the 2nd of November, 1897. The plaintiff in his plaint alleges all these facts, and further that he was dispossessed by the defendants on the 17th of October, 1908. The suit was instituted on the 21st of November, 1908. Notwithstanding the description of the property in the mortgage and in the decree as also at the time of the auction sale, it now turns out that all along the property was held as an occupancy holding and not as a fixed-rate tenancy. The plaintiff comes into court having to admit that the holding is an occupancy holding. The lower appellate court has held that the holding is an occupancy holding, but that the defendants are estopped from setting up this defence. In my opinion the defendants are entitled to succeed. Section 9 of Act XII of 1881 provides that a right of occupancy shall not be transferable in execution of a decree. The result is that the plaintiff has to come into court and ask for possession on the basis of an alleged sale of an interest in land which the law in the most express terms provides shall not be sold. A number of authorities have been cited. In the case of Ashu Tosh Sikdar v. Behari Lal Kirtainia, [1967] I.L.R., 35 Cal., p. 61 it was held that a sale in contravention of the terms of section 99 of the Transfer of Property Act is not a nullity but merely voidable. In that case the property had been attached and sold on foot of a simple money decree, there being at the time a subsisting mortgage against the property vested in the decree-holder. In that case the property had been attached and sold on foot of a simple money decree, there being at the time a subsisting mortgage against the property vested in the decree-holder. The appeal arose out of an application to set aside the sale and not as in the present case a suit to recover possession based on the sale. Furthermore, the provisions of section 99 of the Transfer of Property Act are not altogether analogous to the provisions of section 9 of Act XII of 1881. In the case of Madho Lal v. Katwari, [1888] 8 A.W.N., 41 it was held that in execution of a decree for enforcement of a hypothecation bond by sale of specific property an objection by the judgment-debtor that the property is not transferable with reference to section 9 of the N.W.P. Rent Act, could not be entertained. This case also arose out of execution proceedings. In the present case the plaintiff has to come into court admitting that he is not in possession and that he is seeking possession of property which he has to admit was not transferable by the court. In other words, the plaintiff has to say himself the very thing which it is claimed the defendants are estopped from saying. 2. I am asked to hold that the decrees of the courts below may be supported by virtue of section 9 of the Specific Relief Act. 3. The plaintiff, it was said, being in possession and being wrongfully dispossessed, brought his suit within six months. I am afraid that this contention is not open to the plaintiff. Even assuming that the plaintiff was dispossessed by the defendants otherwise than in due course of law, if he had wished to recover possession on this ground, he ought to have instituted the suit on this ground alone and not as he has done in the present case by bringing a suit by ejectment on title. It has been clearly and distinctly held by a Full Bench of this Court in the case of Lachman v. Shambhu Narain, [1910] 7 A.L.J.R., 1078 that a plaintiff suing for possession on the basis of title cannot get a decree for possession under the first paragraph of section 9 of the Specific Relief Act. It has been clearly and distinctly held by a Full Bench of this Court in the case of Lachman v. Shambhu Narain, [1910] 7 A.L.J.R., 1078 that a plaintiff suing for possession on the basis of title cannot get a decree for possession under the first paragraph of section 9 of the Specific Relief Act. Although I feel bound to allow this appeal, I do not think that the defendants are entitled to costs in any court. I accordingly allow the appeal, and setting aside the decrees of both the courts below, dismiss the plaintiff's suit. I direct that the parties shall abide their own costs in all courts.