NABA KISHORE SAHA Vs. DHANANJOY SAHA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of khas possession of a holding which originally belonged to the defendant No. 6, the pro forma defendant.

(2.) It appears that in execution of a decree for money the holding was sold and purchased by the defendant No. 1, who obtained symbolical possession. He, however, failed to obtain actual possession as the defendant No. 6, the old tenant, did not give up possession of the holding. Then the defendant No. 1 came to an arrangement with the defendant No. 6 by which the holding was practically divided between them. Defendant No. 1 obtained possession of a portion, the remaining portion being left in the possession of defendant No. 6, a conveyance having been executed by defendant No. 1 in favour of defendant No. 6 in the name of his sons. Subsequently, it appears, the defendant No. 6 entered into an arrangement with the landlords (the plaintiffs) under which the former executed a deed of surrender of the entire holding in favour of the landlords, although he was in possession of only a portion of the holding. But although he executed the istifanamah he retained possession of the portion of which ho was in possession, and the question is whether under these circumstances the plaintiffs are entitled to obtain khas possession of the holding.

(3.) Looking at the substance of the transaction between the defendant No. 1 and defendant No. 6, it appears that defendant No. 1 became transferee of a portion of the holding: and although the defendant No. 1 could not by his purchase (of the entire holding) acquire any right as against the landlords, the effect of the arrangement as between the defendant No. 1 and defendant No. 6 was that defendant No. 6 continued to remain in possession of a portion of the holding and allowed the defendant No. 1 to occupy the other portion. No case of abandonment was, or could under the circumstances be, set up by the plaintiffs and the surrender by defendant No. 6 in favour of the landlords is found to be collusive. The surrender not being real, the tenancy of defendant No. 6 has not yet terminated and the landlords (the plaintiffs), therefore, are not entitled to possession of the land. The surrender appears to have been made in pursuance of an arrangement with the landlords with the object of defeating the rights of defendant No. 1, the defendant No. 6 retaining possession of the portion of the holding which was in his possession.