SARJU Vs. BAMZAN ALI

JUDGEMENT

(1.) THIS contest in the suit which gives rise to this appeal was one between the mortgages of two tenancy plots in village Bhopatpur in district Bahraich and a tenant to whom those plots were let out by the landlord after they were relinquished by the mortgagor.

(2.) THE suit was for Possession and damages by the new tenant Bamzan Ali and it was directed against Sarju the present 'holder of the mortgagee rights under two possessory deeds (Exs. A -l and A -2) dated December 16, 1906 and May 10, 1921.

(3.) IT is to be noticed that the defendant who holds the two mortgages of tenancy rights had no privities of contract with the landlord (Jang Bahadur v. Rae Raja O.C. 265) and he could, not therefore, prevent him from accepting the surrender from Dasrath The provisions for relinquishment contained in Section 20 Oudh Bent Act were not exhaustive and it was possible for a tenant to surrender his rights to landlord by private negotiation. All that was necessary was that there should be some overt action on the part of the tenant in furtherance of the surrender. Where the tenant was in actual physical possession delivery of possession was an essential ingredient of a valid relinquishment. But where the property was in possession of some other subordinate holder, e. g. a sub -lessee (Batyadeo Chaube v. Kesho Chaua -1912 E.D. 716) or a mortgagee (Mohan Lal v. Jangi Singh, 1923.R.D. 466 and Zuban Ahmad v. Subrati -192 J R.D. 483) obviously there could be no physical abandonment of possession and mere execution of a deed of relinquishment or some other similar act could constitute sufficient evidence of surrender. It has been hold in Dargahi Lal v. Manna, (1943 R.D. 125) that in cases where the tenant is not in physical possession of the land all that is necessary is that he should give up such possession as he is capable of passing and since all that he had was constructive possession all that need have been done was to yield up that sort of possession to the landlord. The learned Judge observed in this connection that: