1. This appeal arises out of a suit for arrears of rent for the years 1325,1326 and 1327 Faslis.
2. The plaintiffs claimed as mortgagees of a certain ex-proprietary holding. They sued two persons, the appellant Kharbar and one Baldeo on the allegation that they were the plaintiffs' tenants. Kbarbar pleaded that he had ceased to be a tenant, that he was ejected by Baldeo several years before the institution of the suit; and that Baldeo alone was in possession. Baldeo pleaded that he was not a tenant of the plaintiffs and that he had purchased the lands from the original tenants. He denied that the plaintiffs were mortgagees. He asserted his own possession and denied that Kharbar was in possession.
3. The learned Judge of the lower appellate Court found the following facts:
He found that Baldeo purchased the holding from the original mortgagors; that Baldeo obtained possession in 1323 Fasli and has been in possession since; that Kharbar is not in possession; and that Baldeo is not the plaintiffs' tenant. The learned Judge made a casual remark that Kharbar was in collusion with Baldeo. There was no allegation on either side to that effect, nor does there appear any evidence on the point. At another place the learned Judge opined that the possession of Baldeo was that of a sub-tenant of Kharbar. This is an opinion on a point of law and I do not accept it as a finding of fact. The learned Judge agreed with the first Court as to the liability of Kharbar for rent on the ground that Kharbar not having served a notice of surrender he continued to be liable to pay rent.
4. The question is whether on the findings of the learned Judge the liability of Kharbar for the rent of the years 1325 to 1327 Fasli can be established in law.
5. Kharbar does not hold under any written lease. He did not hold for any particular term. He was only a sub-tenant from year to year. He could sever his connexion with the land by surrender or by an agreement with the landholder. In my opinion it is not necessary for a surrender, to be binding on the landholder, to be made (with the consent of the landholder. Section 83, Clause (1) of the Tenancy Act says that a tenant who is not bound by a lease or other agreement far a fixed period may, at the end of any agricultural year, surrender his holding. There is a proviso to the effect that he shall not surrender only a portion of his holding. The second clause of the section says that notwithstanding such surrender, he shall be bound to pay the rent of the following agricultural year if he has failed to give a notice of the intended surrender on the first day of April of the current year. This would imply that the penalty of not giving a notice is this that the tenant would pay the rent for one whole year following the date of his surrender. There is no other penalty. The second clause further implies that there may be a surrender without the consent of the land-holder. This indication afforded by Clause (2) of Section 83 is strengthened by Clause (3) of the same section. That clause says that nothing in Section 83 shall affect any arrangement by which a tenant and his landholder may agree to the surrender of the whole or any portion of a holding. Here alone comes the question of surrender with the consent of the landholder. My opinion, therefore, is that a tenant may surrender his holding by actually giving up the lands. His liability in the circumstances would only amount to a payment of the rent for the first year of his non-occupation.
6. Applying this law to the facts of the present case we find that the appellant ceased to be in possession of the holding for the first time in 1323 Fasli. There was a suit for arrears of rent against him for the years 1322-1323 Faslis and that suit was decreed. Under the law as propounded above the claim for 1323 Fasli was, it seems rightly decreed. But there seems to be no authority for the proposition that the tenants' liability extends further and is unlimited in time although he may not be actually in possession. The plaintiffs had notice of the fact that Baldeo has been in possession of the land. In the suit for the rents of the year 1322-1323 Faslis the appellant pleaded that he was not in possession and that Baldeo had taken possession of the land. This is mentioned by the learned District Judge himself. Then there remains the fact that Baldeo was impleaded as a defendant by the plaintiffs for the simple reason that they could not get over the fact that Baldeo was in possession. In my opinion the plaintiffs could not shut their eyes to the facts and continue charging the appellant with rent.
7. I hold that the appellant is not liable to pay rent for the years in suit.
8. The appeal succeeds; and it is hereby allowed and the suit of the plaintiffs-respondents is dismissed with costs throughout as against the appellant.