AMINADDIN SHEIKH Vs. CHANDRANATH SEN

JUDGEMENT

(1.) IN this appeal by defendants 1 and 2 the only question raised is that the lower appellate Court was not justified in treating the tenancy as having been abandoned as the tenant did not leave the village in which the holding was situate. It appears that the plaintiffs, now respondents, instituted the suit in which this appeal arises for recovery of possession of a plot of land on eviction of defendants 1 and 2 who are described as principal defendants after establishment of their jamai right to the same. There is no dispute with regard to the plaintiffs title before me but it is said that the findings of the lower appellate Court (i) that defendants 3 and 4 who are under-raiyats under the plaintiffs are not in possession of any portion of the disputed land and (ii) that they have made no arrangement for the payment of rent are not sufficient to constitute abandonment within the meaning of Section 87, Ben, Ten. Act and in support of this contention reliance has been placed on an unreported decision of this Court in appeal from appellate decree No. 2620 of 1912 decided on 22 January, 1915 in which two learned Judges of this Court held that in order to come to a finding that there was an abandonment under Section 87, Ben. Ten. Act there must be a finding that the tenant had left the village in which the holding was situate without making any arrangement for the payment of rent. Looking to the terms of Section 87, Ben. Ten. Act it seems to me that all that is necessary in order to establish an abandonment by a raiyat is to show that he has ceased to cultivate his holding either by himself or by some other persons and he had made no arrangement for the payment of his rent. I do not understand how in the face of this section it can be contended that in order to constitute an abandonment a tenant must leave the village in which the holding is situate. There is no other case of this Court except the unreported case to which I have already referred I do not think that the un-reported case could have laid down any inflexible rule that in every case a tenant must be proved to have left the village before abandonment could be inferred. Section 87, Ben. Ten. Act does not in terms apply to the present case as the persons who abandoned their residence are not saiyats but are under- raiyats and they were made defendants 3 and 4 to the suit in which this appeal arises. The Court of first instance dismissed the plaintiffs suit. ON appeal the learned Subordinate Judge of Jessore has reversed that decision and has declared plaintiff's title to the disputed land and has directed that they do get khas possession of the same on ejecting defendants 1 and 2 therefrom.

(2.) THE question of abandonment is a question of fact and in second appeal I am bound by the findings arrived at by the lower appellate Court to the effect that there has been an abandonment of the under-raiyati tenancy by defendants 3 and 4. It was sought to be argued at one stage by the learned advocate for the appellants that Section 87, Ben. Ten. Act does not apply to the case of an under-raiyat and that there may be other methods of evicting an under-raiyat but he cannot be evicted under Section 87, Ben. Ten. Act. This argument fails to take into account several decisions of this Court in which it has been held that the same principles which govern the case of a raiyat also govern the case of an under-raiyat with regard to the circumstances under which the landlord can re-enter in case of an abandonment. Reference may be made in this connexion to the eases of Aminunnissa V/s. Jinnat Ali [1914] 42 Cal. 751 and Ishan Chandra Dhupi V/s. Nishi Chandra [1917] 29 C.L.J. 1. I think this appeal is concluded by the findings of fact and must be dismissed with costs.