SEKH CHAND PRAMANIK Vs. ROMONI MOHAN ROY

JUDGEMENT

(1.) These are six appeals brought by defendants transferees of alleged entire holdings, which were held under the plaintiffs by the transferors who are no parties to the suit. The learned Munsif held that the landlord was not entitled to eject these transferees. The learned Subordinate Judge reversed his decision and held that the landlord was entitled to eject. He, therefore, gave a decree for khas possession to the plaintiff with costs in each case.

(2.) Three points are taken by the defendants before us in appeal, first, that the suit was not properly framed, inasmuch as it was absolutely necessary to make the original tenants parties; secondly, that on the findings of the Munsif, which have not been reversed by the learned Subordinate Judge, it ought to have been held that the holdings are transferable without the consent of the landlord; and thirdly, that although there have been transfers, no fresh tenancies have been created and, therefore, there has been no abandonment or forfeiture; the plaintiff must show positive abandonment or disclaimer by the tenant of any interest in the holding.

(3.) Taking the third point first, it is sought to distinguish the plain rule of law, laid down in the leading case of Kabil Sardar v. Chandra Nath Nag Chowdhury 20 C. 590 following the Full Bench ruling in Narendra Narayan Roy v. Ishun Chundra Sen 22 W.R. 22 : 13 B.L.R. (F.B.) 274 by citing two rulings from Mathura Mandul v. Ganga Charan Gope 33 C. 1219; 10 C.W.N. 1033 and Rajani Kanto Biswas v. Ekkari Das 34 C. 689 : 11 C.W.N. 811 : 7 C.L.J. 48. Now in the first of these cases, the ryot did not give up his interest and it was held that the transfer was not intended to be operative, and if the transfer was not intended to be an operative transaction, the mere fact that the ryot went away from the holding to reside elsewhere would not be sufficient to make it a case of abandonment so as to entitle the landlord to re-enter. The case of Rajani Kanto Biswas v. Ekkari Das 34 C. 689 : 11 C.W.N. 811 : 7 C.L.J. 48 was a case where the transferor re-entered the land as sub-lessee from the purchaser and remained in possession but repudiated his relation as tenant to the landlord: it was held that he was not entitled to hold the land as against the landlord. We do not see how this can help the appellant in this case. The test is, as pointed out by the learned Judges, laid down in Section 87 of the Bengal Tenancy Act, namely, that the ryot voluntarily abandons his residence and ceases to cultivate without notice to the landlord and without arranging for the payment of his rent as it falls due. Now a person, who transfers the whole of his holding to a third person and accepts full payment for it and ceases thereby to have any interest in the land, cannot be said to have protected the landlord s interest in the way laid down by Section 87 of the Bengal Tenancy Act; and in the case of Kabil Sardar v. Chandra Nath Nag Chowdhury 20 C. 590 to which we have referred, it was clearly laid down that the reason why the zemindar is entitled to khas possession of the land of the holding which has been sold and of which possession had been given to the purchaser, is that the sale and transfer of possession to the purchaser conveys no title to him, and as the ryot has left the holding and disclaims any interest in it, he must be held to have abandoned it. It does not say that it is necessary to prove as a fact that the ryot has left the holding and disclaims any interest in it; on the contrary; it says that this is a direct inference from the fact that he has sold the entire holding and given possession of it to the purchaser and that seems to be the true rule of law, and we in this case are entirely governed by it. It is not necessary that there should be a repudiation or refusal to pay rent to the zemindar. We, therefore, think that the argument on the third point fails.