SREERAM CHUNDER BASU Vs. NAGENDRA NATH BANERJEE

JUDGEMENT

(1.) This is an appeal on behalf of defendants Nos. 1 and 3 and arises out of a suit brought by the plaintiffs for recovery of certain land. Both the first and the lower Appellate Courts have given a decree in favour of the plaintiffs. The facts necessary for the determination of this appeal are shortly these. The plaintiffs claim to be occupancy raiyats with reference to the land in suit. The defendants who are called, for the sake of brevity, Koles wore under-raiyats under the plaintiffs. The under-raiyats sold their interest to defendants Nos. 1 and 3. The defence of the defendants was so far as it appears from the judgments of the Courts below and the issues which have been read to us, that the Koles were not under-raiyats and also that the Koles had a transferable right in the land and that they had not abandoned their rights. It appears that although the defendants had entered appearance and issues were raised, ultimately at the trial, they did not appear on the ground that certain papers which had been sent for at their instance, were not before the Court at the time of the trial. The result was that the Munsif tried the suit ex parte and accepting the plaintiffs evidence which stood uncontradicted passed a decree in favour of the plaintiffs. The defendants appealed to the lower Appellate Court and the learned District Judge who tried that appeal has dealt with the question whether or not the ex parte trial of the suit was justified and came to the conclusion that under the circumstances the Munsif was right in refusing the adjournment at the instance of the defendants. Then the learned District Judge dealt with the question which was raised before him on appeal as to the merits of the case and found that the non-transferable under- raiyati of the Koles was transferred to the defendants evidently meaning thereby to defendants Nos. 1 and 3 and the learned Judge farther found that the Koles were not in possession of the land as under-raiyats as apparently it was contended on behalf of the defendants, the appellants before him that the Koles were still in possession. The learned Judge further found that the Koles were still in possession of a portion of the land because their mother had taken a sub-lease from the defendants Nos. 1 and 3 of a portion of the land which the Koles had transferred to defendants Nos. 1 and 3. On these findings the learned District Judge held that the Koles had abandoned the holding and confirmed the decree of the Munsif.

(2.) In this second appeal, against that decree of the learned District Judge the learned Vakil who appeared for the appellants contended that the judgments of the Courts below were not in accordance with law inasmuch as the judgments did not find the facts necessary for passing the decree which has been made. The second contention of the learned Vakil was that upon the facts found by the Courts below there was no abandonment of this land by the Koles. As regards the first contention we are of opinion that there are findings in the judgments of the Courts below necessary for the determination of the question raised before them. The judgment of the learned Munsif no doubt is not very full and this is accounted for by the fact that the suit was tried ex parte as the defendants did hot appear at the trial but when the matter came before the District Judge on appeal all the questions which were specifically raised by the defendants before him were fully discussed and determined as they appear from his judgment. Therefore, the contention that the judgments are not in accordance with law is not, in our opinion, sound.

(3.) As to the second contention that the findings are not sufficient to justify the inference that the land had been abandoned by the Koles, I do not think that there is any substance in that contention. Upon the findings the Koles, who held a nontransferable under-raiyati right and sold their interest to defendants Nos. 1 and 3 who are in possession as such purchasers and the fact that they had let out a portion of the land to the mother of the Koles, makes no difference as to their possession of the whole. The sub-lessee of a portion of the under-raiyati from defendants Nos. 1 and 3 was in possession as tenant under defendants Nos. 1 and 3 and was equally a trespasser as against the landlord as defendants Nos. 1 and 3 were. Under the circumstances it is difficult to say that the landlord had not the right to re-enter when the original tenants after having sold their interest are no longer on the land. The case of a tenant selling a non-transferable tenancy and leaving the land after his transferee has taken possession of the land is not the same as that of a tenant who had left the land without selling it and abandoned it within the meaning of Section 87 of the Bengal Tenancy Act. When a tenant having no transferable interest transfers his interest and puts the transferee in possession the original tenancy may be treated as abandoned and when the transferee takes possession of the land he is no better than a trespasser as against the landlord. We might point out hero that the only appellants before us are the purchasers and not the Koles who were under raiyats under the plaintiffs.