SASHI KUMAR BHOWMIK Vs. KAMINI KUMAR BHOWMIK

JUDGEMENT

(1.) The question of law raised by this appeal is whether the purchaser of a portion of a nontransferable occupancy holding can successfully resist the suit for eviction brought by a cosharer landlord to whom the portion purchased has been allotted exclusively by a partition by the Collector under the Estates Partition Act 5 of 1897 (B. C ) made subsequent to the date of the purchase. Both] the Courts below have answered this question in the negative. The question in this appeal is whether those decisions are right.

(2.) The relevant facts necessary for the determination of this question are few and may be briefly stated thus: The plaintiff, now respondent, was the owner of an 8 annas 5 gandas share in a revenue paying estate bearing Touzi No. 420 in the Tipperah Collectorate records; under the 16 annas proprietor of this estate there was a nontransferable occupancy holding standing in the name of one Brojobasini Bhowmik; this holding consisted of lands which are in dispute in the suit in which this appeal arises and other lands; on 24 Palgoon 1320 B. S. defendant 1 purchased in the name of his wife defendant 2 the lands now in suit; by a partition under the Estates-Partition Act (5 of 1897 B. C.) the lands in suit were allotted to the share of the plaintiff and the rent also was split up so that the plaintiff became the 16 annas proprietor of the tenancy which consisted of the disputed lands. The plaintiff States and it is common ground that the original tenant is not in possession of this new holding and that she has not paid rent in respect of the same. The plaintiff accordingly has brought the present suit against the defendants alleging that they are transferees of the entire holding under the plaintiff and as the holding is a nontransferable occupancy holding the defendants are trespassers and have no right to be on the land. Defendant 1 disclaimed any interest in the disputed land and said that his wife defendant 2 was the real purchaser. Defendant 2 raised several defences but it is necessary to notice only one of them for that is the only defence which is relied on before us. She contends that the plaintiff cannot evict her as she is not bound by the butwara (partition proceedings) and therefore the entire holding has not been transferred and plaintiff is not entitled to re-enter as the original tenant is in possession of a part of the original holding. This defence has been overruled by both the Courts. They held that the partition had the effect of dividing the entire holding and the plaintiff had by the partition become the sole landlord with regard to the disputed holding and as the defendants have not been recognized by the plaintiff the latter has become entitled to khas possession of the disputed lands.

(3.) In second appeal against the concurrent judgments of the Courts below it has been argued (i) that the effect of the division of the lands under the Estates Partition Act was merely to split up the rent and not to divide the holding and (ii) that if the division has such effect it cannot affect the rights of the defendant which they enjoyed before such partition. The argument on the second point is put in this way: It is said that defendant 2, being the purchaser of a portion of the nontransferable holding they could not be evicted by the entire body of proprietors in the absence of evidence of abandonment or relinquishment of the holding by the original tenant, Brojo Basini and there is no evidence that she has quitted the other part not transferred and in support of this proposition reliance is placed on the decision of the Full Bench in Dayamoyi V/s. Anand Mohan Roy [1915] 42 Cal. 172.