TAMIZUDDIN KHAN Vs. KHODA NAWAZ KHAN

JUDGEMENT

(1.) The facts giving rise to this second appeal may be shortly stated thus.

(2.) The defendant No. 7 was the tenant of a certain non-transferable holding. He sold If kauris out of his holding to the defendants Nos. 1 to 4. The landlord declined to recognise that transfer but accepted a surrender of the If kauris from the defendant No. 7, and then settled the same, by means of a registered qabuliat, with the plaintiffs who, however, failing to obtain possess from the defendants Nos. 1 to 4, brought the suit to recover khas possession of that area or adjudication of their title thereto.

(3.) The first Court decreed the suit in full. On appeal to the Subordinate Judge, the decision of the first Court has been reversed the sale by the defendant No. 7 to the defendants Nos. 1 to 4 has been held to be an incumbrance within the meaning of Section 86 Sub- Section ((5) and (7) of the Bengal Tenancy Act. The Subordinate Judge has further declared that rent for If 1? kauris must be paid by the defendants Nos. 1 to 4 to the superior landlord and that these defendants have a right of occupancy in their purchased land. In second appeal by the plaintiffs, who, as we have already mentioned, are the new tenants under the superior landlord after acceptance of the surrender by the defendant No. 7, the contentions are, substantially, these: that the sale by the defendant No. 7 to the defendants Nos. 1 to 4 is not an incumbrance within the meaning of the Section (86), that the surrender of the If kauris was valid even without the consent of the defendants Nos. 1 to 4, and that the further reliefs granted by the Subordinate Judge, as to the liability for payment of rent and the declaration of the occupancy right of the defendants Nos. 1 to 4, cannot be sustained.