KALA MIA Vs. KSHETRA MOHAN PAL

JUDGEMENT

(1.) Defendant 1, Kala Mia, is the appellant in this ease and in the suit out of which this appeal arises the plaintiffs sued for recovery of khas possession of certain land on a declaration of their title, The main admitted facts relating to this case have been set forth at considerable length in the judgments of the Courts below and it is unnecessary to repeat them at the present stage. It appears that, as far as the plaintiffs are concerned, they based their title primarily on a mortgage which was executed in their favour on 10 July 1910 by a man named Yakub Ali. In due course they instituted a suit on this mortgage. They obtained a decree in 1912 and they purchased the property in suit at the mortgage sale on 11th December 1912. It appears that only the minor mortgagees were able to take possession of the mortgaged property in respect of an 11 anna 4 ganda share. They therefore instituted a partition suit in order to obtain an allotment in respect of their share and they obtained a final decree in the partition suit on 10 February 1931. The plaintiffs took symbolical possession of their share on 5 May 1936, but were unable to take physical possession of their allotment owing to the fact that Kala Mia, defendant 1 was actually in possession. They therefore instituted the suit out of which this appeal arises on 6 October 1936.

(2.) The main point for consideration in connexion with this appeal is whether or not the title of defendant 1, Kala Mia, is better than that of the plaintiffs. This person bases his title upon a settlement which he had obtained from the landlord on 3 August 1932 and his contention is that, after the original tenant Minnat Ali had sold the property in suit to Yakub Ali on 10 July 1910; he surrendered this part of the tenancy to the landlord in July 1912. Thereafter, in 1913, the landlord obtained a decree for khas possession against Yakub Ali and the heirs of Minnat Ali and it is said that he actually obtained khas possession on 2 August, 1918.

(3.) It is contended on behalf of the appellant that the surrender to the landlord by Minnat Ali in 1912 was quite valid in spite of the fact that already in 1910 he had sold to Yakub Ali that portion of the tenancy which he surrendered in 1912 and which includes the subject-matter of the suit out of which this appeal arises. It is also contended that, by virtue of the decree obtained by the landlord on 24 July 1913, the interest of Yakub Ali in this portion of the tenancy had become extinct and in these circumstances the Pal mortgagees could not be regarded as being in any better position than their mortgagor Yakub Ali. I am not prepared to accept these contentions. It is clear from the principles laid down in Dayamoyi V/s. Ananda Mohan Roy ( 15) 2 AIR 1915 Cal 242 that, after the sale by the original tenant Minnat Ali to Yakub Ali on 10 July 1910, although the tenancy was not transferable Yakub Ali nevertheless acquired a right in that portion of the tenancy which had been transferred to him which he was at liberty to mortgage to the predecessors of the plaintiffs. In Dayamoyi V/s. Ananda Mohan Roy ( 15) 2 AIR 1915 Cal 242 it was pointed out that where the transfer is of a part only of the holding or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of S.87, Ben. Ten. Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.