ASWANI KUMAR DHUPI Vs. HAR KUMAR GHOSH

JUDGEMENT

(1.) This is an appeal by defendants 2 and 4 against the judgment and decree of the Subordinate Judge of Bakarganj, affirming the decision of the Munsiff. Tbe suit out of which this appeal arises was for ejectment of the heirs of a deceased tenant and their transferees on the allegation that the tenancy was a non-transferable occupancy holding and with regard to another piece of land it was an under-raiyati which the heirs of the original tenant Dwarka have abandoned. The heirs are Rabi and Kanai of whom Rabi alone has been made a party to this suit Evidently Kanai's interest will not be affected in any way and persons setting up the title of Kanai cannot be affected by any decree in this suit.

(2.) It is, however, necessary to examine the decision of tbe Suboi dinate Judge. Dwarka died in Kartik 1350. It is said that the sons of Dwarka left the village in Falgun 1324. The plaintiff took settlement from the landlord in Baisak 1325 and is alleged to have taken possession. He next alleged that he was dispossessed in 1330 by the present defendants. What the Subordinate Judge finds is that the present defendants got a sub-lease from Rabi and Kanai dated 16 Ashar 1325 and purported to hold possession under them. Two days after Rabi and Kanai sold 15 annas of their interest to defendant 2. The question is whether these transactions amount to abandonment. It is hardly necessary to point out that the inference from facts found as to whether there was abandonment or not is a question of law. Can it be said that because the sons of the original tenant had left the village after the death of their father for three months (that is from Falgun to Baisak) there was abandonment which entitled the landlord to settle the land with the plaintiff? The very statement of the facts shows the absurdity of that contention nor can it be said that tilt Ashar the sons of Dwarka had at all abandoned the land. Some period must elapse from the date of leaving the village by the occupancy raiyat before it can be definitely stated that he has abandoned his holding. The period in this case is absurdly short. Then in Asbar 1325 the sublease given in favour of defendant 4 shows that those persons did not intend to abandon the holding but wanted to retain a grip upon the property by granting a sublease. The granting of the sublease cannot be considered to be a transfer of the tenancy in question nor can the selling the 15 annas of th e interest in the property. The proposition has now been finally settled by the Full Bench case of Daya Moyi V/s. Ananda Mohan Roy [1916] 42 Cal. 172. It cannot therefore be said that the tenants have actually abandoned the land. Apart from the question of one of the heirs of Dwarka who would undoubtedly be a tenant having been left out of the suit there is no abandonment by the tenant.

(3.) The appeal therefore will be decreed. The judgments and decrees of the Courts below are set aside and the suit of the plaintiff dismissed with costs in all Courts. The plaintiff's title to receive rent for the holding will not ba affected by this judgment.