SHEIKH DASTAR ALI Vs. RAM KUMAR GOPI

JUDGEMENT

(1.) This appeal comes before as under the provisions of Clause 15 of the Letters Patent owing to a difference of opinion between Mr. Justice Teunon and Mr. Justice Richardson. The facts relating to the case are simple. The plaintiff sued to eject the defendants Nos. 1 and 2 from a portion of a certain holding. The case was this and the facts are thus found. The father of the defendants Nos. 1 and 2 acquired by purchase a portion of a nontransferable occupancy holding from the defendant No. 3, the occupancy raiyat. Sub-sequent to the transfer to the father of the defendants Nos. 1 and 2, defendant No. 3, the occupancy raiyat, in breach of the duty that he owed to his purchaser and in derogation of his own grant, purported to surrender to the landlord, the plaintiff, the portion of the nontransferable occupancy holding that he had already sold to the father of the defendants Nos. 1 and 2. After such surrender the plaintiff instituted the present suit. The first Court refused khas possession. The lower Appellate Court reversed that decision and decreed ejectment. On appeal to this Court, Mr. Justice Teunon was of opinion that the landlord, the plaintiff, was not entitled to maintain the present suit while Mr. Justice Richardson was of opinion that having regard to the decisions of this Court the landlord was entitled to maintain the suit and eject the defendants Nos. 1 and 2. The case is not open to argument, in my view, having regard to the decision of this Court in the case of Ananda Mohan Roy Chowdhury v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965. That was a Letters Patent Appeal, decided by Mr. Justice Woodroffe and Mr. Justice Mookerjee, from a decision of Mr. Justice D. Chatterjee sitting singly and the view that was adopted in that case was that the raiyat, the vendor, having transferred a portion of the holding, had nothing left in him in that portion to surrender to the landlord. The other case that was relied upon chiefly by Mr. Justice Richardson was a Letters Patent Appeal heard and decided by Woodroffe, Chitty, and Shamsul Huda, JJ., being the case of Skeikh Tamiz Munshi v. Bisweswari Debya Chowdhurani 46 Ind. Cas. 862 : 22 C.W.N. 967. But that case was essentially a different one from the case now before us, because in that case the Court came to the conclusion that what had happened was that there had, in fact, been a surrender of the whole of the holding to the landlord and that the landlord was not bound by the partial transfer that had been made by the tenants prior to the surrender. That is a totally different case from the case that is now before us. That case we need not consider, because it is quite clear that the case before us is absolutely concluded by the decision in Ananda Mohan Roy Chowdhury v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965, already referred to. In the result, I would adopt the opinion expressed by Mr. Justice Teunon, decree the present appeal and restore the decree of the first Court with costs in this Court and in the lower Appellate Court. Beachcroft, J.

(2.) I agree. Greaves, J.

(3.) I agree.