1. This is a plaintiff's appeal arising out of a suit for a declaration of proprietary title. The defendant, brought a suit against the present plaintiff in the revenue Court for ejectment alleging that the present plaintiff was his sub-tenant. On a plea of proprietary title raised by him, the present plaintiff was referred to the civil Court to obtain a declaration of his title. The plaintiff's case as set forth in the plaint was that he was the zemindar of the village and the defendant was originally the occupancy tenant of the plots in dispute. The defendant then abandoned the lands which came into the plaintiff's possession as his khudkasht and have been cultivated by him. The defence was that prior to the plaintiff becoming a cosharer, his father had taken the lands in question for cultivation as a sub-tenant from the defendant's father, and that, therefore, the sub-tenancy continued even though the plaintiff subsequently became the zemindar. There was a further plea that before the partition which has taken place there were other cosharers with the plaintiff's father and even if the plaintiff's plea as to possession was assumed to be true the defendant's occupancy tenancy has not become extinguished.
2. The lower appellate Court has stated that the plaintiff is the zemindar of the village without suggesting that he has other cosharers with him, but the first Court has pointed out that he has cosharers. But they have both dismissed the claim on the ground that an abandonment of the holding has not been established. They have, however, found in favour of the plaintiff that the defendant has entirely failed to prove that his father had let out the plots in dispute to the plaintiff's father to cultivate them as a, sub-tenant. The first Court hesitated to believe that the plaintiff and his father had been in possession of the holding since 1316 Fasli. The lower appellate. Court, however, had not challenged the plaintiff's case that the defendant and his father left the village 15 or 16 years ago when the possession of the plot was taken by the plaintiff. It has remarked that the plaintiff and his witnesses deposed to that effect, and then stated that:
this does not amount to abandonment as contemplated under Section 87, Tenancy Act.
3. It has again remarked that:
no notice was given by the plaintiff to the defendant and his father as required under Section 87, Tenancy Act.
4. It is quite clear that the finding of the lower appellate Court that there was no abandonment is not based on its disbelief of the plaintiff's evidence but on the ground that in its opinion the abandonment can be effected only after notice under Section 87, Tenancy Act, has been given. The lower appellate Court has adopted the opinion of the first Court that it was the duty of the plaintiff to have proved technically the abandonment:
in accordance with the provisions of law laid down in Section 87, Tenancy Act.
5. For the support of that view it had relied on the case of Sheo Nath Kurmi v. Autar Kurmi 5 All. Un. Rev. Dec. 371.
6. The question whether the leaving of the village by a tenant without arranging for the payment of rent to the landlord amounted to an abandonment, is primarily a question of fact dependent on the intention of the tenant. But the finding of the lower appellate Court is not based on any inference of such intention. It is based entirely on its interpretation of Section 87, Tenancy Act. The finding accordingly is not a finding of fact binding upon me in second appeal. No reported case of this High Court has been cited before me. The Calcutta High Court when dealing with a similar provision of law in Section 87, Bengal Tenancy Act, has consistently adhered to the view that the giving of notice by the landlord is not the only way in which abandonment can be proved: vide Lal Mamud v. Arbullah Sheikh  1 C.W.N. 198, Bhagwan v. Bisheshri  3 C.W.N. 46, and Samugan v. Mahaton  4 C.W.N. 493. There are also several previous cases reported in the Weekly Reporter.
7. A learned member of the Board of Revenue has undoubtedly expressed the contrary opinion in Sheo Nath Kurmi's case where it was remarked that inasmuch as the zamindar had taken no action under Section 87, the land could not be held to have been abandoned by the tenant-in-chief. An earlier case of the Board of Revenue Mt. Makaraji Naikin v. Sheo Mangal Das 3 All. Un. Rev. Dec. 153, is distinguishable because there the tenant had not left the village, although it was remarked that Sub-section (2) was imperative. On the other hand another learned member of the Board of Revenue in Nawab Syed Muhammad Ali Nasir Khan v. Guptar 5 All. Un. Rev. Dec. 270, remarked:
So far as I make it, it has never been held that there is apparently no other way of establishing abandonment by an occupancy tenant except by proceedings under Section 87. Obviously this section is not meant to provide the only means for establishing this fact as it can only be brought into operation when the tenant has left the neighbourhood.
8. That, however, was a converse case where the zamindar himself was pleading that there had been no abandonment and was relying on his want of giving the notice.
9. In the absence of any clear authority binding upon me I must examine the section itself. It contemplates the entering into possession by the zamindar even within a year of the tenant's leaving the neighbourhood without making arrangement for the payment of rent, as the zamindar can take possession any time after the 15th May following. Sub-Clause (3) contemplates a suit by the tenant for recovery of possession under Section 79. Sch. 4, group C, No. 30 prescribes six months as the period of limitation commencing from the date of dispossession. In cases where the landholder has taken possession promptly he can claim a presumption in his favour under Sub-clause (3), if he has given notice under Sub-clause (2). But even that presumption is not conclusive. The words
before the landholder enters under this section he shall file a notice &c.;
10. indicate that if he wishes to take advantage of the presumption under this section he must proceed by giving notice. I do not think that the effect of the section is to lay down that in no other case can there be an abandonment of the tenancy. If the tenant has left the village without putting his tenancy in charge of any person and without having made any arrangement for the payment of rent, and neither returned to the village for over 12 years, nor taken any care of his tenancy, the abandonment by him may be proved even though no notice has actually been filed by the zamindar under Section 87.
11. If the plaintiff is the sole landholder entitled to recover the entire rent of this holding then his possession of the land for over six months has undoubtedly extinguished the tenancy. On the other hand if he is only one of several co-sharers in the village and the rule laid down in Rani v. Aidal Singh A.I.R. 1924 All. 431, is correct then this is not a case of dispossession by the landholder bat one of adverse possession against the tenant. Even then the tenant's right to the tenancy would be extinguished after the expiry of 12 years.
12. In the circumstances of the present case I am unable to accept the view of the Court below that the civil Court should invoke the aid of Section 34, Tenancy Act, which is meant principally for the revenue Courts, and hold that in spite of the adverse possession of the present plaintiff, a constructive sub-tenancy has come into existence and the defendant is entitled to treat the plaintiff as his subtenant. If the view accepted by the lower appellate Court be correct then no tenant can ever lose his tenancy no matter how many years have elapsed since he left the village. I am therefore unable to accept the finding of the lower appellate Court as conclusive. I may add that although the new Tenancy Act is not applicable the corresponding section, viz: Section 107 uses the word 'may' instead of shall and make it quite clear that the giving of the notice is not the only course open to the land-holder.
13. Accordingly before disposing of this appeal finally I must have clear findings by the lower appellate Court on the following two points: (1) Whether the plaintiff is now the sole landholder i.e., entitled to recover the whole of the rent of the lands in dispute or whether there are other cosharers in the plots who are not members of his joint family? (2) When did the defendant's father or the defendant leave the neighbourhood of the village without making any arrangement for payment of the rent to the landholder, and for how long the plaintiff's father and he have been in possession of the lands?
14. The findings should be returned within two months.