SASTHI CHARAN BARNIK Vs. MANNIDRA LAL SINGHA

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession of a holding on declaration of the plaintiff's title thereto. The plaintiff's case briefly stated is as follows: One Man Gazi held the disputed holding under the plaintiff as an occupancy raiyat having no transferable right therein. He transferred the entire holding to the defendant in Asarh 1290 M. E. and abandoned the holding. The defendant is therefore a trespasser and is therefore liable to be evicted. The main defence of the defendant is that he is a purchaser only of a portion of the holding and that there had been no abandonment of the holding by the raiyat Man Gazi. The learned Munsif held that the defendant is the transferee of a portion of the holding and that there had been no abandonment of the holding by Man Gazi. He accordingly dismissed the plaintiff's claim for khas possession. On appeal by the plaintiff to the lower appellate Court the learned Judge has found that Man Gazi has sold the entire holding to the defendant, but he has continued to be in possession of a small portion of the holding as a sub-lessee under the transferee. On these facts the learned Judge was of opinion that the holding was abandoned by Man Gazi and that the plaintiff was entitled to re-enter. He accordingly allowed the appeal and decreed the plaintiff's suit for khas possession. Hence the present appeal by the defendant.

(2.) The point for determination in this appeal is whether the tenancy of Man Gazi had come to an end by transfer as alleged by the plaintiff. Now the position, when a transfer is made on the footing that under-lease shall be given to the transferor, is this that the transaction is to be treated not as a transfer of the whole interest of the holding but as being no more than a transfer of the part: see Hira Lal Ghose V/s. Imanuddi 1932 Cal 584. On the facts found by the learned Judge therefore the transfer of the holding in the present case must be taken to be a transfer of only a part of the holding. The plaintiff is therefore not ordinarily entitled to recover possession of the holding unless there has been either abandonment within the meaning of Section 87, Ben. Ten. Act, or repudiation in the tenancy: see Dayamoyee V/s. Anandamohan Roy 1915 Cal, 242. The point for consideration therefore is whether there has been abandonment in the present case within the meaning of Section 87, B. T. Act. The possession of Man Gazi of a portion of the holding has been proved in the present case. He has not left the village. His evidence which has been accepted by the learned Judge goes to indicate that the transferee has been paying rent after his purchase to the plaintiff. The plaintiff's case is that he did not recognize the purchase by defendant 1. There cannot be any doubt therefore that the transferee has been paying rent in the name of the transferor. Under these circumstances, it cannot be said that no arrangement has been made for payment of the rent due to the landlord. I am therefore of opinion that there has been no abandonment within the meaning of Section 87, Ben. Ten. Act.

(3.) The facts of this case also do not go to show that there had been repudiation of the tenancy by Man Gazi. The mere fact that he is paying rent to the transferee for the land which is in his cultivation is not enough to show that he has repudiated his liability between himself and the plaintiff to pay rent: see Hira Lal Ghose V/s. Imanuddi 1932 Cal 584, cited above. The learned advocate for the respondent however tried to distinguish the above case on the ground that in that case the raiyat was in possession of the homestead portion of the holding. But the principle laid down in that case has equal application where the raiyat is in possession of a portion of the agricultural lands. In fact the plaintiff has failed to produce any material before the Court from which it can be inferred that Man Gazi has repudiated his liability to pay rent to him. The plaintiff is therefore not entitled to re-enter as there has been neither abandonment nor repudiation of the tenancy by the raiyat Man Gazi. The result therefore is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. The appellant will get his costs in this Court as well as in the lower appellate Court.