ANNDA PROSAD TALUKDAR Vs. RAMJAN SARKAR

JUDGEMENT

(1.) In the suit with reference to which this appeal arises the plaintiffs sought to eject the defendant, Ramjan Sarkar, from certain land. Their case was that a man Maniruddin was their tenant in respect of a holding with an area of 176 acres and that on 17 Aswin 1335 B.S. corresponding to 3 October 1928, i.e., before the passing of the Bengal Tenancy Act of 1928, he transferred one acre of this holding to the defendant Ramjan Sarkar. Subsequently, after the passing of the Act of 1928, Maniruddin transferred 4he remainder of the holding to Kalipada Bhattacharjee. The transfer took place on -28 February 1934. The plaintiffs then applied for pre-emption of the portion of the holding which had been transferred to Kalipada Bhattacharjee and an order for pre-emption was duly made in their favour. Subsequently, on 10 January 1936, the plaintiffs instituted the suit out of which this appeal arises for the purpose of ejecting Ramjan Sarkar from that portion of the folding which had been transferred to him in 1928. The main defence put forward by Ramjan Sarkar was to the effect that, under the law as it stood after the passing -of the Bengal Tenancy Amendment Act of 1928, he was not liable to ejectment. The first Court dismissed the plaintiffs suit on two grounds. The first was to the effect that under the present law a subsequent "transferee steps into the shoes of the former tenant. Therefore in the event of such a transfer there can be no abandonment of a holding within the meaning of Section 87, Ben. Ten. Act and the previous purchaser obtains protection under the shield of the purchase by the subsequent transferee.

(2.) The second ground on which the learned Munsif decided the case in favour of the defendant was that the plaintiffs could not take advantage of their own purchase for the purpose of treating the entire holding as having been abandoned. The lower Appellate Court upheld the decision of the;first Court on the second of the two grounds [mentioned above but the learned Subordinate Judge did not consider it necessary to -discuss the first ground upon which the case has been decided in the defendant's favour by the first Court. The first point tirged in favour of the appellants is to the affect that both the Courts below were wrong in dismissing the plaintiffs suit on the ground that they cannot take advantage of their own purchase for the purpose of treating the entire holding as having been abandoned. In support of the view which has been adopted by both the Courts below reliance was placed upon a decision of this Court in Sorojini V/s. Romesh Chandra . In that case the plaintiff was the landlord of a non-transferable occupancy holding a portion of which had been previously transferred by the tenant who however retained the homestead portion of the holding. The plaintiff subsequently obtained a decree for arrears of rent, purchased the homestead and took possession of the same. On the basis of her purchase she then sought to treat the entire holding as having been abandoned and she sued to recover that portion of the holding which had been previously transferred by the tenant. Mitter J. held that: It is now well settled that for the purpose of abandonment, a sale in invitum stands on the same footing as a transfer by the act of the occupancy raiyat, and for the purpose of constituting abandonment, the transfer of the entire holding need not be effected all at once. If the entire holding is sold but in parts at different times, it will amount to abandonment as soon as the last transfer is made.

(3.) The learned Judge held however that as the plaintiff by her purchase stepped into the shoes of the tenant, on the principle adopted in Mohsenuddin V/s. Bhaganan Chandra (1921) 8 A.I.R. Cal. 444 she could not put forward her right as a landlord to re-enter the abandoned holding. The learned Judge therefore held that the retention of her character as assignee of the tenant, i.e., of her character as representative of the tenant, is inconsistent with her insisting on her claim to recover possession on the ground of abandonment in her character as landlord.