ROMESH CHANDRA MITRA Vs. DAIBA CHARAN DAS

JUDGEMENT

(1.) In this case, the landlord sues the transferee of a non-transferable occupancy jote for khas possession of the holding. It appears that two tenants Raj Mohan and Sonatan held the suit lands as occupancy raiyats under the plaintiff. In execution of a money decree obtained against the tenants as well as of a mortgage decree obtained against them, the holding was sold to the defendant No. 1 and thereupon the tenants took a tenancy under the transferee, remaining upon their homestead portion which was part of the land of the tenancy and also remaining as cultivators of a certain number of plots being part of the tenancy. In these circumstances, there has been a difference of opinion between the Courts below. The learned Munsif, following Dayamayi V/s. Ananda Mohan [1915] 42 Cal. 172 has held that, as the tenants on longer pay rent to the plaintiff and as they now claim to hold the home-stead and some plots of land within the jama under the transferee and not under the plaintiff and as there is no independent evidence that the tenants still regard the plaintiff as their landlord, it is clear that there has been an abandonment of the tenancy within the meaning of Dayamayi's case [1915] 42 Cal. 172. He proceeded in theory entirely upon abandonment and as a matter of fact, is the first Court, little, or nothing appears to have been said either about repudiation or about relinquishment. The learned District Judge of Jessore has taken another view. He has treated the case as a question solely of abandonment. He has pointed out that the plaint spoke of abandonment and that there is no allegation of relinquishment or repudiation. He has found that, upon Dayamayi's case and certain subsequent decisions, there is no abandonment and he has, accordingly, as against the transferee, dismissed the suit. There was another defendant against whom the suit was also dismissed. In my opinion that circumstance helps neither party and I do not propose to refer to it again.

(2.) This is a typical case and one constantly coming before the Court. The conditions under which we have to decide it are, I think, these : we are bound by Dayamayi's case; but the decisions previous to Dayamayi's case are not now necessarily binding, upon us. This circumstance is of the less importance that the relevant decisions prior to Dayamayi's case are in almost no simple circumstance consistent or well settled. So far as regards the subsequent cases purporting to interpret Dayamayi's case, we are, I think, bound either to follow those decisions or to refer the matter to a Full Bench. But above and beyond these oases to which I have just very generally referred, we have to remember that there stand the express provisions of the Bengal Tenancy Act. In dealing with this case, I propose to go first to the decision of Dayamayi's case and to examine the state of the authorities applicable to such a case as the present.

(3.) In the second paragraph in the reported judgment of Dayamayi's case [1915] 42 Cal. 172 to be found in (42 Cal. p, 223) the proposition laid down by the Full Bench is in these terms: "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; but where the transfer is of a part only of the holding, or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy." It will be observed that, in both branches of that proposition, occurs the word "ordinarily" and that word by itself shows that the circumstances mentioned in each branch are being : regarded as evidence of, or, as importing reference to, some higher, more precise or more ultimate test. One asks oneself in the present case whether the circumstance that the tenants are still upon their homestead lands and are still cultivating part of the holding is a consideration which takes the case out of the qualification intended by the word "ordinarily". I am quite clear that such a case as this is not an ordinary case for the purpose of the proposition. In the second part of the proposition it would appear that the ultimate test is abandonment (under Section 87), relinquishment or repudiation of the tenancy. But it does seem to mo possible that the meaning of the first part of the proposition is that, on proof that a tenant has transferred the whole of his holding out and out, the Court may conclude that there is an abandonment not necessarily within the meaning of Section 87 or a repudiation of the tenancy that would not necessarily be allowed as by itself a sufficient reason for eviction under Section 25 of the Bengal Tenancy Act. I say that is a possible interpretation of the language of the first branch. It has to be remembered that, whether they were right or not, there were a considerable number of decisions to the effect that Section 87 is not exhaustive. Whether the Court meant to keep that open is not clear. In like manner, as regards repudiation, the law as I understand, is that a mere denial of the landlord's title or of the relationship of landlord and tenant is not, by itself, a ground of eviction, having regard to the express terms of such sections as Secs.10 and 25: but that, if in a previous suit, a tenant successfully denied his landlord's title then, on the principle of estoppel by record, an eviction may take place. This question whether in interpreting the word "ordinarily" in the first part of the proposition, we are to have sole regard to Section 87 and to the provisions of the law as regards eviction which I have already expressed is, to my mind, the main difficulty in these cases. In the present case however, I am of opinion that, on the evidence and on the findings, there is no justification for our holding that there is, in any legal sense of the word, an abandonment or in any legal sense of the word, a repudiation. In this matter, one has, first of all, to remember that Section 87 speaks of the tenant abandoning his residence without making provision for the payment of rent and ceasing to cultivate the holding by himself or another person. In the present case the tenant has not changed his residence and has not altogether ceased to cultivate the holding. There is no proof of refusal to pay rent. It seems to me, that, on these facts, any mere inference to be drawn from the fact of the sale in execution cannot amount to abandonment or repudiation in any sense of those expressions justifiable under the law. It has to be observed that in this case the sale was forced upon the ton-ants. Assuming that there was mortgage decree as well as money decree, still there can be no doubt that the money decree alone would have necessitated the sale. That being so, the tenants are in this position that they cannot question the title of the transferee. The landlord may elect to do so or may elect not to do so. One has to look to what the tenants in these circumstances have done. Not knowing whether the landlord will or will not assent they have made terms with their transferee which provide that they shall have still a residence on the suit lands and shall still have the right to cultivate some of the lands. It seems tome that the tenants have done as much as they reasonably could in these circumstances to escape conduct amounting to abandonment or amounting to repudiation.