ASANULLA MOLL Vs. SANKAR DAS SANYAL

JUDGEMENT

(1.) The defendant purchased a non-transferable occupancy holding and the plaintiff as landlord brought the present suit for recovery of khas possession of the land. Defendant s case is that after his purchase he obtained possession, paid rent in the name of the old tenant and obtained Marfatdari receipts for four years and that subsequently the landlord on taking Nazar from him recognized him as tenant and granted a Dakhila in his own name as tenant. The Court of first instance found] in favour of the defendant, but, on appeal, the learned District Judge reversed that finding. The learned District Judge disbelieved the story of recognition on payment of Nazar and the granting of Dakhila in the name of the defendant. So far as that question goes, the finding cannot be interfered with.

(2.) It has been contended before us that the learned District Judge has not considered the effect of the Marfatdari receipts. It one portion of his judgment the learned Judge says: "Whether the defendant paid rent and got Marfatdari receipts is immaterial in the suit". It appears, however, that in a previous part of his judgment the learned Judge disbelieved these receipts and differed from the view taken by the Munsif with regard to these documents. He said: The learned Munsif seems not to have had his attention directed to certain very significant features of the documents on which the respondents rely. The first of these features is that there are distinct differences between the printing of their receipts and that of the receipts in the appellants counterfoils (amongst which are some unissued tenant s portions). In the respondents Marfatdari receipts there is no bottom line such as appears in the tenants portions in the counterfoil books, the spacing of the lines of print is different and in one word the impression of the letter J (on every page of the counterfoil book of one year at least) is blurred in a peculiar way which does not appear in the respondents receipts for that year". Then ha deals with the receipts for 1321, by which the plaintiff is alleged to have recognized the defendant as purchaser on receipt of Nazir. But the previous portion which we have quoted above clearly refers to the Marfatdari receipts, and the remark in the concluding portion of the judgment, where he says that the question whether the defendant paid rent and got Marfatdari receipts is immaterial, must be taken to mean that even if they were genuine they would be immaterial. It should be observed that the defendant did not rely upon the Marfatdari receipts as recognition of him as a tenant and set up a case of express recognition on receipt of Nazir and the grant of the receipt in his own name in the year 1321, The Court of first instance also did not rely upon these Marfatdari receipts as constituting recognition. In all these circumstances, we do not think that we should remand the case for considering the question whether the Marfatdari receipts in the circumstances of the case amounted to a recognition.

(3.) The learned Pleader for the appellant also contended that the mere fact that there was a transfer by a Kobala executed by the tenant in favour of the purchaser or that the purchaser was in possession, was not sufficient to constitute abandonment unless it was found that the tenant had repudiated the tenancy, and relied upon Section 87 of the Bengal Tenancy Act. But it was pointed out in the case of Samujan Roy v. Munshi Mahaton 4 C.W.N. 493 that the provisions of Section 87 of the Bengal Tenancy Act are not exhaustive and "do not prescribe the only mode in which a holding can be abandoned", and in the case of Sekh Chand v. Romoni Mohan Roy 17 Ind. Cas. 603 : 17 C.W.N. 115 it was observed that in order to entitle a landlord to eject a transferee of the whole of a non-transferable raiyati holding it is not necessary for him to prove as a fact that the raiyati has left the holding and disclaims any interest in it. It is a direct inference from the fact that he has sold the entire holding and given possession of it to the purchaser and distinct repudiation or refusal to pay rent need (not be proved". We may also refer to the observation made in the case of Digbijoy Roy v. Ata Rahaman 15 Ind. Cas. 156 : 17 C.W.N. 156 at p. 159 where the learned Judges said: "It is not disputed that at the time when the present action was commenced, the original tenant was not in occupation, and the person in possession was the defendant. It is also not disputed that the defendant came into occupation on the assumption that he had acquired a valid title by purchase, and that his transferor had severed his connection with the holding. Under these circumstances, the legitimate inference is that (here had been an abandonment of the tenancy by the original tenant".