SURESH CHANDRA MOOKERJI Vs. SRIMATI NESA BIBI

JUDGEMENT

(1.) WE are invited in this Rule to set aside a possessory decree made by the Court below under Section 9 of the Specific Relief Act. The facts so far as we have been able to gather them from the records may be briefly stated. One Amir Sheik was the recorded tenant of the disputed land under the petitioner as landlord. He died about the end of the year 1908. Chi the 23 January 13C9, the persons claiming to be his legal representatives paid rent to the landlord on account of the holding. Subsequently under circumstances which have not been explained, the landlord took proceedings under Section 87 of the Bengal Tenancy Act and occupied the holding, with the result that the present opposite parties-who claimed to be the heirs of the original tenant and were in actual occupation of the lands, were dispossessed. They then commenced this action for recovery of possession under Section 9 of the Specific Relief Act. The landlord resisted the claim on the ground that the plaintiffs had not been dispossessed otherwise than in due course of law. The Court of first instance overruled this contention and made a decree in favour of the plaintiffs. On behalf of the first defendant it has been argued in support of this Rule that as the landlord obtained possession under Section 87 of the Bengal Tenancy Act, the plaintiffs must be taken to have been dispossessed in due course of law and that consequently they are not entitled to the benefit of Section 9 of the Specific Relief Act. In our opinion this contention is obviously fallacious. Section 87 deals with the case of voluntary abandonment by a raiyat of his holding; it has no application to the case of a vacancy caused by the death of a raiyat. This is fairly clear from Sub-sections (1) and (3) of the section. Sub-section (1) provides that if a raiyat voluntarily abandons his residence without notice to the landlord and without arranging for payment of his rent as it falls due, and ceases to cultivate his holding either by himself or by some other person, the landlord may enter on the holding and let it to another tenant or take it into cultivation himself. This clearly contemplates the case of a person who has voluntarily abandoned his holding. Sub- section (3) provides that when a landlord enters under Section 87, Sub-section (1), the raiyat shall be entitled to institute a suit for recovery of possession of the land within a prescribed period. It is clear, therefore, that the landlord was not entitled in the case before us to take proceedings under Section 87 of the Bengal Tenancy Act on the ground that his recorded tenant had died and he is consequently not protected. There is, however, another difficulty equally formidable in the way of the petitioner. Section 87 does not legalise an entry by the landlord, if as a matter of fact the holding has not been abandoned. It is not the service of notice under Section 87 which terminates the tenancy, but rather the voluntary abandonment by the tenant coupled with acts on the part of the landlord indicating that he considers the tenancy at an end, Lal Mamud Mandal V/s. Arbullah Sheikh 1 C.W.N. 198. The landlord who proceeds under Section 87 takes possession at his own risk and on his own responsibility. Hut if he adopts the procedure laid down in Section 87, he safeguards himself to this extent that it becomes obligatory upon the tenant to have a speedy determination of the question, whether there has been an abandonment or not, Ram Pershad Kaeri V/s. Jawahir Rai 7 C.L.J. 72 : C.W.N. 899. It is manifest, therefore, that if as a matter of fact there has been no abandonment by the tenant so as to justify a re-entry by the landlord the mere fact that the landlord has taken proceedings under Section 87, does not make his entry one in due course of law, as it is made under colour of a provision of the law which is admittedly inapplicable. The case before us, as found by the Court below, is really not one of abandonment but of dispossession, and the heirs of the original tenant who have been dispossessed cannot be said to have lost possession in due course of law simply because the landlord chose to take proceedings under Section 87 of the Bengal Tenancy Act. In this view the decree made by the Court below must be affirmed and this Rule discharged with costs. WE assess the hearing fee at two gold mohurs.