ZAMIR MUNSHI Vs. BISSESWARI DEBYA CHOWDHURAIN

JUDGEMENT

(1.) In this case certain tenants sold portions of their occupancy holdings to the principal defendant and surrendered those portions only to the landlord and took from him leases at an enhanced rent in respect of the residue of their holdings. The landlord by virtue of the surrender wants to eject the principal defendant. The first Court disallowed the prayer for khas possession and the lower Appellate Court has allowed it. The question before us is whether the decree for khas possession is right. The judgment of the lower Appellate Court finds support in the cases of Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16 and Ramoni Mohan Roy v. Kalimuddi 17 Ind Cas. 682 : 17 C.W.N. 1101. It is contended, however, that these cases were wrongly decided and in any case are no longer binding authorities, as they are inconsistent with the later Full Bench ruling in Dayamoyi v. Ananda Mohan Roy 27 Ind. cas. 61 : 18 C.W.N 971 20 C.L.J 52 : 2 C. 172 and have been questioned in the case of Asgar Ali v. Gouri Mohan Roy 21 Ind. Cas. 564 : 19 C.W.N 601 : 18 C.L.J. 257. I think these contentions are right and that the judgment of the lower Appellate Court is wrong. It was held in Dayamoyi s case 27 Ind. Cas. 61 : 18 C.W.N 971 20 C.L.J 52 : 2 C. 172 that the sale of a portion of an occupancy holding is valid and the landlord has no right to khas possession of the land. Now what more has taken place in this case? The tenants sold portions of their occupancy holdings and had no right or interest left in the same. Then they made a show of a surrender of the self-same lands to the landlord. They had nothing to surrender and the landlord had no right to eject the purchaser. Then there is an amalgamation of these two nothings and at once the landlord is competent to eject the purchaser. It is true the landlord was not bound by the sale and could, under Section 85(7), Bengal Tenancy Act, accept a partial surrender; but this means a surrender of something which the tenant had to surrender. Apart from the meaning of the word surrender in English Law, the word has a meaning as a word in the English language, to give up or resign or yield to the possession of another; but the tenant has no right to give up or resign or yield what he has already sold. In this view of the case surrender is a misnomer for the act of the tenant and Section 86(5), even if it could apply to part-surrender (for the clause speaks of surrender of his holding), would not entitle the landlord to take klias possession. Nor in this view of the case is it necessary to consider whether the word incumbrance in Section 86(6) includes the sale of a portion of a holding.

(2.) Having regard to the fact that I differ from the decision of the Court in the cases of Tamieuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16 and Ramoni Mohan Ray v. Kalimuddi 17 Ind Cas. 682 : 17 C.W.N. 1101 the better course would perhaps have been to refer the matter to the Full Bench, but as I cannot do so alone and as the second branch of the argument, namely, the effect of Dayamoyi s case 27 Ind. Cas. 61 : 18 C.W.N 971 20 C.L.J 52 : 2 C. 172 may be sufficient to dispose of the case I would allow the appeal.

(3.) As we differ on a point of law, the case must go to the Chief Justice for reference to a third Judge. The point of law in respect of which we differ is--whether a raiyat, having sold a part of his occupancy holding, can surrender the self-same part to his landlord so as to entitle the latter to take khas possession of the said part by ejecting the purchaser? Newbould, J.