PRATAPCHANDRA GHOSH Vs. RAMANIMOHAN GHOSH

JUDGEMENT

(1.) This appeal arises out of a suit for the ejectment of the defendants from a certain non- transferable occupancy holding, on the allegation that they are in possession thereof as trespassers. The original tenant was one Kamalkamini Debi. Defendant 2 is the daughter of Kamalkamini and defendant 1 is the husband of defendant 2. Defendant 3 is a bargadar in actual cultivating possession of the land in suit. In 1322 B.S. Kamalkamini executed a deed of gift in respect of certain properties, including the holding in suit, in favour of her daughter and her son-in-law, defendants 1 and 2. This was at or about the time of the marriage of defendant 1 to defendant 2, and since that time defendant 1, together with his wife, defendant 2, has been living with his mother-in-law Kamalkamini as gharjamai, and has been in possession of the land in suit by virtue of the deed of gift executed in his favour by Kamalkamini, and by realization of his share of the paddy grown on the land by the bargadar, defendant 3. It may be observed that this bargadar, defendant 3, used also to cultivate the land under Kamalkamini before she executed the deed of gift in favour of defendants 1 and 2. It may further be observed that, although Kamalkamini has admittedly not paid any rent to the landlord for some years back, previous to that and subsequent to the execution of the deed of gift, the rent for the years 1325 to 1327 and the first quarter of 1328 were realized from her by suit.

(2.) It is common ground that the transfer was effected without notice to the landlord and without his previous or subsequent consent, and in those circum stances the question arises whether there has been an abandonment of the holding by Kamalkamini, and whether the landlord is entitled to treat the defendants as trespassers and to eject them from the land. On behalf of the appellant, reliance is placed on that portion of the decision of the Full Bench in Dayamayi V/s. Ananda Mohan Boy (1915) 42 Cal 172, in which it is laid down that: where the transfer is a sale of the whole holding, the landlord, in the absence of his consent, is ordinarily entitled to enter on the holding,

(3.) It is contended that although the decision of Dayamayi's case (1915) 42 Cal 172 relates expressly to transfers for value of occupancy holdings, the principles laid down apply with equal force to other kinds of transfers, such as transfer by gift, in which the whole holding is transferred and in which the tenant does not retain any subsisting interest in the holding. This contention cannot, in my opinion, be supported. The decision in Dayamayi's case (1915) 42 Cal 172 was based on a consideration of a number of previous and to some extent conflicting decisions regarding the effect of transfers for value of occupancy holdings, or of portions of such holdings, and also on a consideration of changes that were taking place in economic conditions in so far as such changes influenced and were influenced by the extension of the practice of the sale or mortgage of occupancy holdings with or without the landlord's consent.