SAROJINI ROY Vs. ROMESH CHANDRA BISWAS

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff in a suit for declaration of her title to seven plots of land, described in the plaint, for confirmation of her possession over an area of 4 keors of land, being the northern portion of plot 1, and for recovery of possession of the remaining lands. All the plots of land constituted a non-transferable occupancy holding held by one Ejaraddin under the plaintiff and her predecessor-in-interest.

(2.) Her suit was decreed by the learned Munsif in its entirety, but on appeal the learned Subordinate Judge has maintained the decree of the learned Munsif in respect of 4 keors of land, being the northern part of plot 1, and has dismissed her claim for khas possession in respect of the remaining lands. It has been found that on 15 Falgoon 1323 Ejaraddin sold all the lands of his holding, save and except the aforesaid 4 keors of land, which was his homestead, to defendants 1 and 2. Thereafter he remained in possession of his homestead which he retained, and on his death his heirs remained in possession thereof. The plaintiff sued his heirs for rent, and obtained a decree, which was not a rent decree, but had the force of a money decree. In execution of the said decree the plaintiff has purchased on 10 May 1924 the said 4 keors of land and thereafter took possession of the same on 20 May 1924. By reason of the transfer by Ejaraddin to defendants 1 and 2, and by reason of the aforesaid Court sale all the lands of the holding have passed out of the hands of the heirs of Ejaraddin. The plaintiff sues on the basis that by reason of the said transfers the holding has been abandoned and she sues for possession in her character as landlord. The learned Munsif held that the aforesaid two transfers constitute abandonment. The learned Subordinate Judge has held that: Partial transfers done by sale in Court, and another by a private conveyance at two different times, cannot be tacked together to make a complete transfer of the holding for the purpose of building the theory of abandonment.

(3.) He accordingly held that the plaintiff was entitled to get a decree for confirmation of possession to the said 4 Keors of lands on the basis of her having purchased the right, title and interest of the heirs of Ejaruddin in the same at the Court sale but was not entitled to get khas possession in the rest of the lands. The reasons given by the learned Subordinate Judge are clearly wrong, but the decree which he has made, in my judgment, is a correct decree, for the reasons which I will state hereafter. It is now well settled that for the purpose of abandonment a sale in invitum stands on the same footing as a transfer by the act of the occupancy raiyat, and for the purpose of constituting abandonment, the (transfer of the entire holding need not be effected all at once. If the entire holding is sold but in parts at different times it will amount to abandonment as soon as the last transfer is made. In the case before me the sale by Ejaraddin to defendants 1 and 2, on 15 Falgoon 1323, did not amount to abandonment, as all the lands had not been sold, a substantial part of the holding being retained by the tenant. The transfer of the entire holding was only completed by reason of the purchase by the plaintiff at the Court sale of the said 4 keors of land. The question is whether the plaintiff can put forward her own purchase for sustaining a case of abandonment. In my judgment she cannot. I do not rest my judgment on the ground of estoppel. It has been held that a cosharer landlord purchasing an occupancy holding cannot raise the question of transferability of the holding as against another purchaser of the same: Ayenuddin Nasya v. Srish Chandra Banerjee (1907) 11 C W N 76, Harro Chandra Poddar V/s. Umesh Chandra (1910) 14 C W N 71 and Chandi Prosannao V/s. Gour Chandra 1916 Cal 452; but where the purchase is by the sole landlord or by the entire body of landlords it has been held that the said principle has no application: 12 C W N 721=8 C L J 29 (4) and Jnanendra V/s. Dukhiram 1924 Cal 850.