JUDGMENT : Misra, J. - Plaintiff is the Appellant. Plaintiff's case is as follows: Plaintiff is the proprietor and owner of the Khasmahal lands situate in the town of Cuttack. The father of Defendants 2 to 5 was the recorded tenant under the Plaintiff in respect of the suit land described in the schedule of the plaint. The lease was a non-agricultural one and the terms and conditions of the tenancy were contained in the lease and the kabuliyat (Ext. 2). The terms were binding on the sub-tenant (Defendant No. 6). The lease expired on March 31, 1943. The recorded lessee failed to pay rents on due dates and transferred the suit land, without the permission of the Collector, to Defendant No. 1 by a registered sale-deed dated April 15, 1938 in contravention of Clause (3) of the lease and the Kabuliyat. The lessee also contravened Clause (8) of the lease and the kabuliyat by failing to keep the land free from jungle. 'The holding was put to sale by the Certificate Officer as it fen into arrears of rent, and Defendant No. 1 purchased it on April 2, 1942 under Sale Certificate (Ext. A-1) for Rs. 50/-. Certificate proceedings were started against Defendants 2 to 5 as their father had previously transferred the leasehold interest in 1938. Defendant No. 1 applied for getting his name mutated. The Collector ordered that he was to pay Rs. 100/- as penalty and mutation fee by a particular date. Mutation was allowed subject to those conditions. Defendant No. 1 failed to comply with the conditions of permission and ultimately permission was withdrawn. In exercise of the right of ejectment reserved by the lessor under Clauses (17) of the lease and the kabuliyat, it was decided by the Collector to eject the Defendants and a notice to quit was served on May 13, 1946, asking them to vacate. Defendant No. 1 is in actual possession as a trespasser. Plaintiff accordingly prays for a decree for ejectment and delivery of vacant possession of the suit land and for recovery of Rs. 41/4/- with future interest against Defendant No. 1 as damages for use and occupation. 2. Defendant No. 1 contested the suit setting up his title on two-fold grounds- firstly, on the basis of the sale certificate (Ext. Plaintiff accordingly prays for a decree for ejectment and delivery of vacant possession of the suit land and for recovery of Rs. 41/4/- with future interest against Defendant No. 1 as damages for use and occupation. 2. Defendant No. 1 contested the suit setting up his title on two-fold grounds- firstly, on the basis of the sale certificate (Ext. A-I) dated April 2, 1942, and secondly, on the basis of the purchase by the registered sale-deed, dated April 25, 1938. He also took the plea that he was recognised as tenant by the order of mutation and the Plaintiff was entitled only to realise the penalty by certificate proceedings, and the permission granted was not a conditional one. Defendant No. 6 also filed a separate written statement. 3. Both the courts have dismissed the Plaintiff's suit holding that Defendant No. 1 had a valid title and could not be evicted. The claims of the other Defendants were rejected. 4. Mr. Bath, learned Standing Counsel, raised two contentions in support of the appeal: (i) The transfer by the original lessee in favour of Defendant No. 1 in 1938 by the registered sale deed was valid as between the transferor and transferee subject to the rights of the Collector to resume the holding for contravention of Clause (3) of the lease and the kabuliyat. Defendant No. 1 purchased under the sale certificate (Ext. A-1) merely the right, title and interest of the certificate-debtor at the time of the sale. The Collector not having exercised the option to avoid the transfer by 1942, and Defendant No. 1 having already purchased the suit property from the original lessee, the latter had no sub-sisting title to be further conveyed on April 2, 1942. By the court sale Defendant No. 1 acquired no title, and (ii) The sale in favour of Defendant No. 1 in 1938 conveyed no title in his favour as ultimately the Collector chose to resume the suit land. The order passed by the Collector for mutation was a conditional one, and Defendant No. 1 having failed to fulfil the conditions, there was no recognition of the transfer in 1938 in his favour. 5. To appreciate the conditions, it is necessary to quote Clauses (3) and (17) of the lease and the kabuliyat (Ext. 2): 3. The order passed by the Collector for mutation was a conditional one, and Defendant No. 1 having failed to fulfil the conditions, there was no recognition of the transfer in 1938 in his favour. 5. To appreciate the conditions, it is necessary to quote Clauses (3) and (17) of the lease and the kabuliyat (Ext. 2): 3. That I/we shall not by any means or in any way whatsoever bequeath or transfer (which term includes giving a sub-lease of) my/our holding or any portion thereof to any other person without first obtaining the written permission of the Collector and without paying a transfer fee that may be fixed from time to time by the Government. Any bequest or transfer made without the permission of the Collector previously obtained in writing shall be voidable at the option of the Collect and he may take Khas possession of the land thus bequeathed or transferred impose a penalty on the legatee or transferee not exceeding three times the transfer fee. The penalty thus imposed and the transfer fee referred to above shall both the recoverable under the Public Demands Recovery Act IV (B & O) of 1914. In case of an unauthorised bequest the option to take Khas possession will accrue on the death of the lessee. 17. That in the event of any breach or non-performance or non-observance of any of the above conditions I we shall, in addition to such remedy as Government may be entitled to in Civil Court be subject to a fine which shall not exceed half the yearly rental. The fine shall be recoverable under the Public Demands Recovery Act IV (B & O) of 1914. I/we shall also be liable to ejectment for infringement of any of the conditions 2, 3, 4, 5, 6, 7, 10, 11 and 13 of the lease and on notice to me/us to quit and delivery up possession of the land, I/we shall do so forthwith. Provided that I/we shall not be both fined and also ejected in respect of the same infringement. Provided further that I/we shall not be evicted for non-payment of rent unless I am/we are a habitual defaulter. Non-payment of rent for three successive instalments or for four instalments during the course of three years will make the tenant a habitual defaulter under this clause. Provided further that I/we shall not be evicted for non-payment of rent unless I am/we are a habitual defaulter. Non-payment of rent for three successive instalments or for four instalments during the course of three years will make the tenant a habitual defaulter under this clause. It is clear from Clause (3) that the transfer in favour of Defendant No. 1 by the registered sale deed in 1938, made without the permission of the Collector, is not void but voidable at the option of the Collector. The Collector exercised this option by Ext. 3 series passing conditional order that Defendant No. 1 would deposit a sum of Rs. 82/8/- towards mutation fee and Rs. 100/- towards penalty by May 30, 1945. It is the admitted case that Defendant No. 1 did not comply with this order. Thereafter, the Collector exercised the option of avoiding the transfer of 1938 and to take steps for eviction which has been done by filing this suit. 6. It was contended for the Respondents that as a result of the conditional order there was recognition of the transfer in 1938, and the Collector cannot take steps for eviction, once there was recognition, and that the only course open to the Collector is to realise the penalty under Public Demands Recovery Act. Reliance is placed under Clause (17) of the lease and the kabuliyat. Though this contention appealed to both the courts below, it has no substance. The order itself is a conditional order. There would be recognition only on fulfillment of the conditions. It was open to the Collector to pass an order for recognition either absolutely or conditionally. The conditional order must have its full effect. 7. A point of some difficulty emerges for consideration at this stage which has not been argued either in the courts below or here. The question is, if the Collector exercises the option of avoiding the transfer of 1938, which is voidable under Clause (3) of the lease and the kabuliyat, is the transfer void on the date of the exercise of the option, or from the date of the transfer itself? The answer is that the transfer is void from its inception. The question is, if the Collector exercises the option of avoiding the transfer of 1938, which is voidable under Clause (3) of the lease and the kabuliyat, is the transfer void on the date of the exercise of the option, or from the date of the transfer itself? The answer is that the transfer is void from its inception. AIR 1932 89 (Privy Council) their Lordships observed as follows: If the matter could be regarded as one of contract, their Lordships think that it would fall within the terms of Section 65, Contract Act, which provides that 'when a contract becomes void' and their Lordships would have no difficulty in holding these words sufficient to cover the case of a voidable Contract which had been avoided-any person who has received any advantage under such contract is bound to restore it to the person from whom he received it, or make compensation therefor. In Sundara Rao v. Income Tax Commissioner AIR 1957 Mad 451 their Lordships relied on this principle of the Privy Council decision for coming to the conclusion that when a voidable transaction is avoided, the avoidance is effective not from that date but from the date of the original transaction itself. The effect of the avoidance is to get rid of the transaction, with the result that in law it is as if the transaction had never taken place. Judged on the basis of the aforesaid principle, when the Collector has elected to avoid the transfer of 1938, it becomes void from the date of the transfer. The result is that by the exercise of the option, the title in the original lessee subsisted in 1938 and Defendant No. 1 acquired no title by the purchase of 1938. The purchase by court sale under Ext. A.1 in 1942 confers a valid title in favour of Defendant No. 1. AIR 1934 853a (Lahore) directly covers this case. 8. Sub-sections (1) and (2) of Section 26 of the Bihar and Orissa Public Demands Recovery Act, 1914 are as follows: (1) Where property is sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale even though the property itself be specified. 8. Sub-sections (1) and (2) of Section 26 of the Bihar and Orissa Public Demands Recovery Act, 1914 are as follows: (1) Where property is sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale even though the property itself be specified. (2) Where immovable property is sold in execution of a certificate, and such sale has become absolute, the purchaser's right, title and interest shall be deemed to have vested in him from the time when the property is sold, and not from the time when the sale becomes absolute. On the aforesaid analysis, the title of the original lessee was not extinguished by 1938. His right, title and interest subsisted in 1942 and passed to Defendant No. 1 in the auction purchase when the latter acquired a valid and non-evictable title independent of the private sale of 1938. Defendant No. 1 cannot be treated as a trespasser. This suit for ejectment is only on the basis of violation of Clause (3) of the lease and the kabuliyat which (out of all other objections raised in the plaint) only was pressed before the lower appellate Court. 9. The appeal has no merit and is dismissed. In the circumstances, parties are to bear their own costs throughout. Final Result : Dismissed