HIRALAL GHOSE Vs. SHEIKH IMANUDDI

JUDGEMENT

(1.) This is a Letters-Patent Appeal from a decision of my learned brother Jack, J., sitting in second appeal. The learned Judge gave a certificate that the case was a fit one to be taken on further appeal.

(2.) The plaintiff is a person who has been found to be the transferee of a tenancy which is a nontransferable occupancy tenancy. The lands comprised in the tenancy were originally part of a larger holding which had been settled in raiyati right. The landlord brought a suit for rent, obtained a rent decree and purchased that previous holding himself. Thereupon, the holding having come to an end, he settled the southern portion of two plots and one-third undivided interest in a homestead plot with one Uma Charan Mitra. Uma Charan sold to the plaintiff the whole of this new tenancy; but at the time of the sale he stipulated that the transferee would grant him an under-lease of the undivided one-third share in the homestead plot. The finding of fact is that Uma Charan from the time of this sale down to the material times was living in huts in that homestead plot by virtue of the lease which he had taken from his own transferee at a trifling rent. In these circumstances, the plaintiff wanted to cultivate the culturable land of the tenancy which he had bought from Uma Charan and ho appointed bargadars and these people were interfered with by certain persons acting under the authority of the original landlord and the original landlord took possession of the culturable land. As a matter of fact, the only land in this suit is the southern half of Dag. No. 578. The plaintiff therefore brings his suit to recover the land which the superior landlord has taken possession of.

(3.) The trial Court framed an issue: "Has Uma Charan Mitra abandoned the holding?" and that issue the trial Court answered by saying that, as Uma Charan, had remained in his original homestead plot, there had been no abandonment. The lower appellate Court insisting that the tenancy was not a holding within the meaning of the Bengal Tenancy Act because it comprised an undivided share in the homestead plot treated the question of abandonment as though the whole of the larger tenancy had still been subsisting and it found that Uma Charan had remained upon the homestead land; but apart from that finding it came to no conclusive finding of fact binding upon this Court as to whether or not Uma Charan's tenancy had been abandoned.