SYED MOHSENUDDIN Vs. BHAGABAN CHANDRA SUTRADHAR

JUDGEMENT

(1.) This reference has been made in connection with an appeal by the plaintiffs in a suit for ejectment. The facts material for the elucidation of the question of law involved in the appeal lie in a narrow compass. Two persons, Durgacharan and Gunamoy, held a non--transferable occupancy holding under the plaintiffs. The tenancy included ten plots of land and the rent payable was Rs. 13--2 a year. On the 17th December 1915 the tenants sold a portion of their holding to the first defendant. The landlords, who were not parties to this transaction, thereafter sued their tenants for recovery of arrears of rent. The tenants expressed their unwillingness to pay rent for the entire holding as they had already transferred a portion. This was plainly no defenes to the suit. The parties, however, tame to an arrangement; the tenants surrendered to their landlords the land they had sold, and took settlement of the remainder for an annual rent of Rs. 6--4. On the basis of this arrangement, a decree was made in favour of the landlords for a very mush smaller sum than what they had claimed. The landlords then instituted the present suit on the basis of the surrender, to eject the transferee from the plots in his possession, The defendant contested the validity of the surrender in the Trial Court. Thereupon, the following issue was raised: Is the Istate valid and sufficient? Is the plaintiff entitled to get khas possession?.

(2.) The Court of first instance answered the question in the affirmative and decreed the suit. Upon appeal, the Subordinate Judge reversed that decision. On second appeal to this Court, it was argued that the original tenants were entitled to surrender to the landlord what they had previously transferred to the defendant. This view was controverted by the respondent who maintained that there could be no valid surrender of what had already been transferred. The Division Bench came to the conclusion that there was a conflict of judicial opinion on the question of the competence of an occupancy raiyat, who has transferred a portion of his nontransferable holding to surrender the portion so transferred to his landlord, whether by surrender of that portion alone or by surrender of the whole inclusive of such portion. They have accordingly referred the following question to a Fall Bench for decision: When an occupancy raiyat has transferred part of his non transferred holding, is he competent to surrender to his landlord the portion so transferred, either by surrender of that portion alone or by surrender of the whole inclusive of such portion.

(3.) As the question arises in an appeal from appellate decree, under the Rules of Court the entire appeal has been referred to the Full Bench for disposal.