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Calcutta High Court
Gohur Shaikh And Ors. vs Shaikh Ahmed Ali And Ors. on 15 July, 1927
Equivalent citations: AIR 1928 Cal 113
Author: B Ghose


B.B. Ghose, J.

1. This is an appeal by defendants 1, 2 and 6 against tho decision of the Subordinate Judge of Kbulna. The suit out of which this appeal arises was one for ejectment of tho defendants with regard to a small area of land of 2i bighas which defendant 2 held under the superior landlords of the plaintiff, defendants 7 and 8, by a kabuliyat dated 4th of Magh 1309 B.S. This land with other lands constituted a holding which previously was held by the husband of defendant 2. The pro-forma defendants 7 and 8, who were the land ords, brought the holding to sale in execution of their rent-decree and purchased it themselves. They re-settled the disputed land with defendant 2 by accepting the kabuliyat I have already mentioned. Subsequently the pro-forma defendants 7 and 8 created an intermediate interest in favour of the plaintiff by granting him a sub-lease. The plaintiff’s case is that by this transaction, he became the immediate landlord of defendant 2. Defendant 2 sold this disputed property to defendant 1. by a kobala dated the 3rd Falgoon 1327 B.S. corresponding to 15th February 1921, and thereby, according to the plaintiff, she forfeited her tenancy. Defendant 6 claimed as under tenure-holder under a permanent lease granted to him by defendant 2. The plaintiff based his claim on two grounds : firstly, that the interest of defendant 2 was that of an occupancy raiyat and that by reason of the transfer there had been an abandonment of the holding on account of which he was entitled to khas possession.

2. The second branch, an 1 which is more important in our view, is that under the terms of the lease of 1309 B.S. under which defendant held that land, she was precluded from transferring the property in any way, either by sale or gift or in any other manner. It was also stipulated in the kabu iyat that in the case of any of the acts of transfer done by the tenant, the landlord would have the right of reentry and take khas possession of the property. The Munsif dismissed the suit on the ground that defendant 2 was in possession of a certain area of the land in question by taking a settlement from her transferee, defendant 1. The plaintiff appealed against that decision and the Sub-ordinate Judge has decreed the suit basing his judgment upon two grounds. The Subordinate Judge has held that the right of defendant 2 was only that of an occupancy raiyat whose right was not transferable without the sanction of the landlord. Having purchased this property the purchaser had taken no interest and they were liable to ejectment; and defendant 6 having taken a perm merit under-lease in violation of the provisions of Section 85 could not resist the landlord’s claim. The Subordinate Judge also held that the plaintiff was entitled to evict defendant 2, under the general law on the ground of ‘transfer in breach of the condition in the kabuliyat. This view of law does not appear to have been properly developed in the Subordinate Judge’s judgment and this question appears to have been dealt with only perfunctorily.

3. In the appeal, on behalf of the defendants-appellants, the learned advocate admitted that he has no case with regard to defendants 1 and 6. But he argues with great deal of force that defendant 2, not having abandoned the possession of the holding, is not liable to be ejected, and that, therefore, the judgment of the Subordinate Judge should be reversed at least to the extent of the land which is actually in the possession of that defendant. There has been a number of cases which have given rise to a conflict of opinion on the question of the liability of a tenant to be ejected, if he transfers the holding but remains in possession of the whole or a part of it by taking a sub-lease from the transferee and if there is no repudiation of the liability for the payment of rent with regard to the holding.

4. In my view which I have expressed in various cases, it is unfortunate that this Court in several reported decisions has held that there CMI be an abandonment of a holding apart from the provisions of Section 87, Bengal Tenancy Act If this Court had from the very commencement of the Bengal Tenancy Act adopted the view that unless there was an abandonment as defined under Section 87, Bengal Tenancy Act, the landlord would not be entitled to khas possession on the ground of a mere transfer by a raiyat having an occupancy right, a good deal of litigation would have been saved. But unfortunately a different view has been taken in a large number of oases which has caused a good deal of misery as well as waste of money. The last of the cases on the question has set forth a view which, I think, might have been accepted from the very commencement. I mean the case of Romesh Chandra v. Daiba Charan .

5. If the present appeal had merely rested upon the question as to the transfer being made by an occupancy raiyat, I should have gladly followed the above case. But in the present case there is a quite different aspect and it arises from its special terms of the covenant by which : the lease was granted to defendant 2. There is no dispute that defendant 2 transferred the interest she had acquired by the kabuliyat of 1309 B.S. to defendant 1 by describing her interest as a permanent mokarari middleman’s interest. This act of transfer inter vivos gives the landlord the right the bring an action in ejectment on the ground of forfeiture, as there is a right of re-entry expressly reserved in the lease of which he has taken advantage. In reply the learned advocate for the appellant states that in spite of this breach the tenant, defendant 2, was entitled to a notice under Section 155, Sub-section 1(b), Bengal Tenancy Act. The difficulty in accepting this contention, is whether defendant 2 was a tenant after the forfeiture incurred by her, and the landlord indicated his desire to take advantage of the forfeiture. This question was raised and decided in the case of Dwarika Nath v. Mathura Nath (1916) 231 C.W.N. 117. Sir Lancelot Sanderson, the late Chief Justice, and the late Mr. Justice Mukerjee have dealt with this question in their different judgments in extenso. The reasonings in those judgments may very well be accepted. This appeal must, therefore, fail and is dismissed with costs.

Roy, J.

6. I agree.

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