KHETRA NATH MONDAL, AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES HARENDRA NATH MONDAL Vs. LAKHAN SARDAR AND DAHARI BUNANI

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of an occupancy holding. The holding belonged to one Budha Buna who executed a usufruotuary mortgage of five out of eight plots on the 24th August 1896, in favour of the superior landlord, the present defendant-appellant. The usufruotuary mortgage was to terminate on the 13th April 1911. The landlord went into possession as usufruotnary mortgagee of the five plots years later, the occupancy raiyat left the village, with the result that the landlord seized the opportunity to take possession of the remaining plots included in the holding. The occupancy raiyat is now dead. Upon the expiry of the usnfructuary mortgage, the landlord has not vacated possession, and on the 8th March 1915, the representatives of the occupancy raiyat instituted the present suit for recovery of possession. The claim has been decreed in respect of the five plots included in the (sic) mortgage, but has been dismissed with regard to the remainder. As there is no cross-appeal we need not consider whether the claim in respect of the other three plots has been rightly dismissed.

(2.) As regards the five plots now in dispute, two contentions have been advanced by the landlord, namely, first, that as there was an abandonment of the holding in 1898, there is no subsisting tenancy on the basis whereof the plaintiffs, as the representatives of the occupancy raiyat, can succeed, and secondly, that the suit is barred by the two years rule of limitation embodied in Article 3 of Schedule III to the Bengal Tenancy Act. In our opinion, there is no foundation for either of these contentions.

(3.) It may be conceded that a holding is deemed to be abandoned by a raiyat if three elements are established, namely, non residence in the village, non-cultivation of the land of the holding, and non-payment of rent to the superior landlord. These elements, however, do not justify an inference of abandonment if the landlord himself by an arrangement with his tenant, be placed in possession of either the whole or a part of the holding. The person competent to set up the plea of abandonment is the landlord himself, because it is his interest that no portion of the cultivable land of the Zemindari should remain uncultivated, but if the landlord himself, under an arrangement with his tenant, takes possession with a view to cultivate it, he cannot setup the plea that the land has been abandoned. In the circumstances of this case, the plea of abandonment consequently fails.