ABDUL MAJID BHUIYA Vs. ALI MIA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of khas possession of the land in suit on the allegation that the tenant who held the land had no transferable occupancy right but ha had transferred the entire tenancy to the defendant. The plaintiffs claim to be the sixteen anna, landlords in respect of the tenancy in suit. Their suit was dismissed by the trial Court on the ground that they were not sixteen anna maliks but were eight anna cosharer landlords and the other cosharer was not made a party. The lower appellate Court was of opinion that the suit by the plaintiff was maintainable to the extent of their share but relying on the case of Ahmed Moulavi V/s. Hemanta Kumar Roy [1926] 94 I.C. 338 he dismissed the suit on the ground that the holding in suit was composed of some entire plots and undivided shares in some other plots and was therefore not a holding under Section 87, Ben. Ten. Act. The learned Subordinate Judge was of opinion that the plaintiffs were entitled to succeed but for the decision mentioned above.

(2.) The question raised in this appeal on behalf of the plaintiffs, is not free from difficulty. The suit is brought by the plaintiffs for recovery of possession on the ground that the tenant had no right to transfer his interest to the defendant and accordingly the defendant had no right to retain possession of the land in suit-It is not a suit restricted by the limited provisions of S. 87, Ben. Ten. Act. It is a suit brought by a party who is entitled to possession, to recover possession from a party who is not entitled to possession. In Bahadur Ahmed's case [1926] 94 I.C. 338 it was a suit for recovery of possession by the landlord on the ground of abandonment of the tenancy and breach of contract under which the tenant had agreed that ho would not transfer the lands. The suit was decreed by the Courts below and the appeal to this Court was dismissed. The defendant raised the contention that his tenancy comprising undivided shares of several plots, was not a holding as defined by the Bengal Tenancy Act, and therefore the sale to defendant could not be considered to be an abandonment of the holding by an occupancy, raiyat which would entitle the landlord until S. 87, Ben. Ten. Act, to get khas possession as upon abandonment. The learned Judge of this Court who delivered the judgment was inclined to accept this contention but he did not give effect to it as he was of opinion that under the contract the tenant had no right to transfer the tenancy and the plaintiff therefore was entitled to re-enter for the breach of the covenant. The learned advocate for the appellants before us has argued that the opinion expressed in that case was an obiter dictum. The appeal was really decided against the appellant on a quite different ground. Apart from that, what the learned Judges held, was that the tenancy could not be said to be a holding as defined in the Bengal Tenancy Act because it included undivided portions of some plots and therefore the sale thereof could not be construed to be an abandonment of a holding. So far as this opinion is based upon the observations made in their Lordships judgment, it cannot be questioned. But the right of the landlord to recover possession of a tenancy relinquished by his tenant does not depend exclusively upon Section 87, Ben. Ten, Act : Lal Mamud Mandal V/s. Arbullah Sheikh [1897] 1 C.W.N. 193 Samujan Ray V/s. Munshi Mahatan [1900] 4 C.W.N. 493 and Mattokdhari Shukul V/s. Jugdip Narain Singh [1915] 28 I.C. 343. The right of the landlord to re-enter when his land remains unoccupied or is in the occupation of a trespasser, is a right which is conferred upon him under the general law., In the present ease the tenancy which is admittedly a nontransferable one, was transferred by the tenant to the defendant, thus putting an end to the tenancy or the relationship of landlord and tenant.

(3.) The landlord is therefore entitled to assert his reversionary right as owner of the land and lessor and has the right to enter into possession and to exclude anyone who may be found upon the land. The landlord may not bring a suit under Section 87, Ban. Ten. Act, in virtue of the fact that the tenancy is not a holding; but his right to recover possession of the land on relinquishment (I do not purposely use the word abandonment) by the tenant is in no way restricted by the provisions of the "Bengal Tenancy Act, In my judgment the matter seams to come more within the domain of the law of contract than the tenancy law. When the tenancy was created the original holder agreed with the landlord that he would not transfer It and his successors are bound by the terms on which the tenancy was created. When the tenant was holding the land in suit he was holding under an agreement that he would not transfer it without the consent of the landlord. Though there was no kabuliyat in this case as was in the case of Bahadur Ahmed, but there was a contract that the tenant would not part with the possession of the land. In my judgment the opinion expressed in the case of Bahadur Ahmed on the basis of she decision in that case does not touch the matter before us; if it does, it is not conclusive of the matter. It is not the defendant's case that the tenants have now any concern with the land. The plaintiffs accordingly are entitled to a decree in their suit for recovery of has possession. To hold otherwise will be to turn a nontransferable holding into a transferable one and to derive the landlord of the right of ever recovering possession of his property.