NRIPENDRA CHAND SAHA CHOWDHURY Vs. JOWADALI MONDAL

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs and it arises out of a suit commenced by them to recover possession of the lands in suit, on establishment of their title to the same. The material facts lie within a small compass and may be narrated as follows: By certain collectorate partitions the plaintiffs have come to own the entirety, of tauzi No. 14198 of the Mymehsingh Collectorate. Under this touzi there was a non-transferable occupancy holding in possession of one Indramoni Dasya, consisting of four plots of land, to wit, C.S. Dags Nos. 686, 688, 801 and 13 acres of Dag 687. In 1927, Indramoni sold all the lands Of the holding with the exception of 434 acres of land of holding No. 686 to the present defendant. In 1928, the Bengal Tenancy Act was amended, making all occupancy holdings transferable in law, and in 1936 Indramoni transferred the residue of the holding amounting to 34 acres of land possessed by her to one Kali Prasanna. The plaintiffs as landlords, thereupon exercised their right of repurchase under Section 26F, Ben. Ten. Act, as it stood prior to the amendment of 1938 in respect to the portion of land purchased by Kali Prasanna, and they have now instituted the present suit to recover possession of the lands sold to the defendant in 1927, on the allegation that the holding was entirely abandoned after the second transfer, and the defendant as a mere trespasser had no right to retain possession of the same against the plaintiffs landlords.

(2.) Both the Courts below have dismissed the plaintiff's suit. They have held concurrently, that as the sale to Kali Prasanna was after 1928, when occupancy rights became transferable in law, the plaintiffs were bound to recognize Kali Prasanna as tenant, and the holding could not be said to have been abandoned. It was further held, that the plaintiffs by exercising their right of pre-emption simply stepped into the shoes of Kali Prasanna, and could not treat their own purchase as constituting art, abandonment of the holding. It is the propriety of this view that has been challenged before us in this second appeal. It may be pointed out at the outset that the identical point came up for consideration before Edgley J. sitting singly in Annada Prosad V/s. Ramjan Sarkar and it was held by the learned Judge that as soon as the last portion of the holding was transferred, there was an abandonment of the holding within the meaning of Section 87, Ben, Ten. Act, and the landlords were entitled to enter on the land occupied by the first purchaser. In that case, as in the present, the landlords had got the lands of the second purchaser by exercise of their rights of repurchase under Section 26(F), Ben. Ten. Act, as it stood before 1938, but it was held, that even without; relying on their pre-emption of a portion of the holding, the landlords were entitled to treat the holding as abandoned. The decision undoubtedly supports the contention of the appellant. Mr. Gupta who appears on behalf of the appellant has placed reliance upon the decision itself but he has attempted to support it on grounds other than those assigned by the learned Judge.

(3.) The learned advocate appearing for the respondent, has on the other hand contended that the decision of Edgley J. is wrong, as it goes against several decided authorities of this Court. In these circumstances it is necessary for us to examine the matter with some care. Under the law as it stood prior to 1928, occupancy holdings were not transferable except with the consent of the landlord or by custom, and an unauthorised transfer of the entire holding by way of sale, ordinarily entitled the landlord to enter upon the lands of the holding: vide Dayamoyi V/s. Ananda Mohan Roy ( 15) 2 A.I.R. 1915 Cal. 242. The reason why the zemindar was entitled to recover possession of the lands of a holding which was sold in its entirety by the raiyat was explained in one of the earliest Pull Bench decisions of this Court which is to be found in Narendra Narayn V/s. Ishan Chandra ( 74) 22 W.R. 22. The reason was that the sale and transfer of possession to the purchaser conveyed no title to him, and as the raiyat had left the land he must be deemed to have abandoned it. As the land remained a part of the zemindary of the landlord, to which the per-son in possession had no title, and which was abandoned by the owner, there was nothing in law which prevented the proprietor from taking possession of it. If the raiyat transferred only a portion of the holding and remained in possession of the rest, the landlord had no right to recover possession of the transferred portion as the holding was not then abandoned, and the original tenant occupying a portion of the lands, constituted a barrier between the landlord and his own transferee. It was also well settled that the entire holding need not be transferred all at once. If the entire holding was sold out in parts at different times, it would amount to abandonment as soon as the last transfer was made. In 1928 the law was changed, and under Section 26(B), Ben. Ten. Act, as it stands after amendment, the holding of an occupancy raiyat, or a share or portion of it can be transferred like any other species of immovable property, subject to the other provisions of the Act. It is undisputed that the section is not retrospective and consequently a transfer of a portion of a holding effected prior to 1928 is not in any way validated by this amendment. The transferee still remains a trespasser. The question now is what would be the legal consequence if the residue of the holding in possession of the raiyat is sold to another person after 1928. The second transferee of course cannot be evicted, but Edgley J. is of opinion that the first transferee can be turned out as a trespasser, as there is an abandonment of the holding as soon as the second sale is made, even though it is made after 1928, and the first transferee would lose the protection, which he hitherto enjoyed by reason of the original tenant being in possession of a portion of the holding. Edgley J. lays stress on the wording of Section 26(B), Ben. Ten. Act, which makes the holding of an occupancy raiyat transferable subject to the other provisions of the Act. In his opinion, Section 26(B) must be read subject to the provision of Section 87 of the Act. It is pointed out by the learned Judge that so long as the original tenant was in possession of some portion of the holding the landlord might have some security for the rent of the entire tenancy, including the portion already transferred. But the second transferee, who acquired the statutory right of a tenant with regard to a portion might get the holding divided under Section 88, Ben. Ten. Act, and the landlord also might exercise his right of pre-emption under Section 26(F) of the Act.