KALI CHARAN GHOSH Vs. ARMAN BIBI

JUDGEMENT

(1.) THIS is a Letters Patent appeal against the decision of Mr. Justice Caspersz. The suit out of which this appeal arises was brought by the plaintiffs to eject defendants Nos. 1, 2 and 3 and defendants Nos. 4 to 6 from certain occupancy land. Defendants Nos. 1 to 3 were the former tenants of the land and they have transferred their rights in the land to defendants Nos. 4 to 6. But notwithstanding that fact, they are still in occupation of the land as under-tenants of the defendants Nos. 4 to 6. The land has been held to be of non-transferable character. In these circumstances the first Court gave the plaintiffs a decree for ejectment of all the defendants whereas the Subordinate Judge gave a decree for the ejectment of only defendants Nos. 4 to 6, on the ground that they are the transferees of the original tenants of a non-transferable tenancy and, therefore, they had no right to the land. But he refused to eject the defendants Nos. 1 to 3 on the ground that they are the original tenants and are still in occupation. THIS decree has been affirmed by the Judge of this Court apparently relying upon the case of Rajani Kanta Biswas V/s. Ekkowri Das 11 C.W.N. 811; 34 C. 689; 7 C.L.J. 78. We do not think that the learned Judge of this Court fully appreciated the doctrine which we intended to lay down in that case. Of course it is true that the transfer of a non-transferable holding does not work a forfeiture. It is true too that the defendants Nos. 1 to 3 have not given up occupation of the land, as they are still cultivating it. But it appears from their written statement that they have repudiated the relationship of landlord and tenant which formerly existed between them and the plaintiffs. They did not raise the pleas that their rights were not transferable and that they were willing to pay rent to the plaintiffs as before. On the contrary they pleaded that their interest was transferable, and had been transferred and so they were in occupation of the land as under-tenants of the transferees the defendants Nos. 4 to 6 and not as the tenants of the plaintiffs. The Judge of the Court below has found as a fact that from the date of the transfer which took on the 11 of March. 1901, up to the date of the present suit, i.e., 15 of April, 1905 the defendants Nos. 1 to 3 have never paid rent for this land and they are not willing to pay rent now, as they plead that they occupy the land as under-tenants of their transferees. In these circumstances they have by their own acts and pleadings put an end to the relationship of landlord and tenant which formerly existed between them and the plaintiffs and, therefore, it would seem to us that the plaintiffs are entitled to eject them. For these reasons we set aside the judgment and decree of the lower Court and decree this appeal with costs of this Court and of the hearing before Mr. Justice Caspersz.

(2.) THE plaintiffs are entitled to wasilat.