ADAM ALI Vs. CHANDU MOLLA

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in an action in ejectment on the ground that defendant I has purchased a portion of a non transferable occupancy holding which originally belonged to one Azimuddin Bepari as appertaining to estate No. 8376. The Subordinate Judge has found that the original jote of Azimuddin consisted of six plots of land. Out of these, three plots were sold by Azimuddin in 1908 to one Kinu Mundle. These three plots were again purchased by defendant 1 in 1913. The plaintiffs had one ganda share in the taluk No. 8376. There was a partition of the taluk among the cosharers under the Estates Partition Act; and the portion of the holding consisting of the three plots which defendant 1 had purchased was allotted to the share of the plaintiffs by virtue of the partition. The plaintiffs brought this suit in November 1922 on the allegation that defendant 1 was a trespasser on the land and that they were entitled to eject him on that ground. The Munsiff decreed the suit. On appeal by defendant 1, the Subordinate Judge has reversed the decision of the Munsiff and dismissed the suit of the plaintiffs. The Subordinate Judge held that Azimuddin was in possession of a portion of the holding and that being so, the plaintiffs had no right to seek ejectment as against the defendants. Evidently the learned Subordinate Judge was referring to the case of Dayamoyi V/s. Ananda Mohan Roy [1915] 42 Cal. 172. The learned Judge further held that the defendants were in adverse possession of the limited interest of a tenaut for more than 12 years. Upon these two grounds he has dismissed the plaintiffs suit for khas possession.

(2.) It is contended on behalf of the plaintiffs here that the decision of the Subordinate Judge is erroneous. The ground stated shortly is that before the partition in 1919, the landlords had no right to sue in ejectment, because the original tenant was in possession of a portion of the holding. The defendants, however, had no right as against the landlords to remain in possession. After the partition a portion of the holding which was in possession of the defendants became a new holding under the provisions of Section 81, Estates Partition Act, and when the plaintiffs became entitled by reason of the partition to have the new holding, they found that the land was in possession of a trespasser and not the original tenant, Azimuddin, and, therefore, they have the right to eject the trespasser. It is further argued that to hold otherwise would have this effect, that if Azimuddin transfers the remaining portion of his holding which has now been allotted to different cosharers, then every one of the cosharers would have the right to eject the transferees from different portions of the holding. The effect would be that notwithstanding the separation of the original holding into different parts by which different holdings were created, an artificial link would remain which would still bind the different new holdings together; and as this anomalous position is unreasonable, the plain and simple position should be accepted that as the plaintiffs find the trespasser in possession of the holding of which they are the sole landlords they can bring ejectment. The answer to this is that the Bengal Tenancy Act is not free from anomalies and to find one consistent rule to govern all circumstances would probably be an unprofitable task. To my mind, the answer to Dr. Sen Gupta's argument is this. When the transfer was made of a portion of the holding in 1908 by the original tenant Azimuddin, the landlords had no right to eject the transferee or the old tenant, because the old tenant had not abandoned the holding which would give the landlords the right to khas possession. The act of partition among the landlords without concurrence of the tenant had surely the effect of dividing the holding so as to give the plaintiffs right to recover their shares of the rent which had been fixed on the portion allotted to their shares of the taluk. But that cannot be said to confer a new right upon the plaintiffs to bring ejectment against the defendants who were not liable to be ejected previous to partition; or in other words, if it was held that before the partition Azimuddin continued as a tenant with regard to the entire holding, by that partition it cannot be said that Azimuddin had abandoned the new holding so as to convert the transferee into a trespasser. I am fortified in the view I take by the observations made by Chamier, C.J. in the case of Suraj Deo Narayan Singh V/s. Patchh Narayan Singh [1917] 2 Pat. L.J. 225, to which our attention was drawn by the learned advocate for the respondents. The observations no doubt were obiter having regard to the finding in that case that there was a usage proved which justified the transfer. But still I think respect is due to the observations made there; and as I fully agree with the reasons of the learned Chief Justice, I should prefer to follow him.

(3.) There is one other point which I think I should deal with. The learned Subordinate Judge has found that the defendants were in adverse possession of the limited interest for more than 12 years. Dr. Naresh Chandra Sen Gupta argues that this finding is wrong, because the plaintiffs had no notice of the trespass. Now, if the defendant is considered to be a trespasser, when did the trespass begin? I do not think the trespass should be held to begin in 1919 when the partition was effected. The act of the landlords effecting the partition cannot be held to be a trespass by the defendants. Trespass must be considered to have commenced when Azimuddin sold these three plots, that is in 1908. Therefore if the plaintiffs take their stand on the ground that defendant 1 is a trespasser, then it must be held that defendant 1 has been a trespasser from 1908 in respect of the limited interest of a tenant. Plaintiff cannot base his claim on the ground that he had no notice.