JUDGMENT
Ross, J.
1. This is an appeal by the plaintiff, who sued to eject the defendant No. 1 from a holding of which he had taken an usufructuary mortgage from defendant No. 2, the original tenant, on the 22nd of January 1905. Defendant No. 2 is said to have sold his raiyati right to the plaintiff on the 13th of October 1912. The landlord claimed to re enter, on the ground that holdings are not transferable without his consent in that village. It has bean found by both the Courts below that the holding is non-transferable. The Munsif decreed the suit, but the learned District Judge dismissed it, holding that the sale by the original tenant, defendant No. 2, to the landlord plaintiff was nothing but a surrender and that defendant No. 2 could convey nothing by surrender which he could not have conveyed to a third party by assignment, and that under the provisions of Section 86, Clause (6) of the Bengal Tenancy Act, the incumbrance was preserved. It is contended on behalf of the plaintiff in second appeal that there is all the difference second appeal that there is all the difference between a sale arid a surrender, and that it is only in case of a surrender by the tenant to the landlord that Section 86, Clause (6), comes into operation, it is contended that as soon as the tenant sells a nontransferable holding, whether to the landlord or to a third person, the landlord is entitled to reenter, as was held in the case of Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52. The cases are clear that where there is a surrender by the tenant to the landlord, the right of the incumbrancer is preserved. See the decision of Mr. Justice Woodroffe in Mohammad Nassaruddin Sarcar v. Sheikh Isab 27 Ind. Cas. 1003 : 21 C.L.J. 185, Ram Udar Singh (Raghunath Singh) v. William Cox 27 Ind. Cas. 564 : 19 C.W.N. 268. Reference was made on behalf of the appellant to the decision in Rajendra Kishore Adhikari v. Chandra Nath Dutt 12 C.W.N. 878 as supporting his contention. That case was referred to and distinguished in Raghunath Singh’s case 27 Ind. Cas. 564 : 19 C.W.N. 268 as being a case of abandonment. I am unable to agree with the main contention of the appellant that a sale and a surrender to the landlord must be distinguished. When the holding is returned to the landlord, it is immaterial what the transaction is sailed. It is in legal effect nothing but a surrender. In fact, the term ‘sale’ is to my mind meaningless as applied to a transaction in which by the translation itself the property which is sold is destroyed. I see no reason why a surrender must necessarily be without consideration, and that is the only difference between “surrender” and “sale” to a landlord that is urged–that in the one case there is consideration and in the other there is not. But whether with or without consideration, when the tenant returns the holding to the landlord, the transaction is surrender and nothing else. The contention of the learned Vakil for the appellant, therefore, in my opinion, fails.
2. A question was raised whether this usufructuary mortgage in itself, being for an indefinite time, is not evidence of abandonment, But this question cannot be gone into as it does not seem to have been raised before. The appeal is dismissed.
3. There is no appearance on behalf of the respondents. The cross-objection is, therefore, dismissed.