1. It is the unsuccessful defendant in both the Courts below who has come up with this Second Appeal which arises out of a suit brought by the plaintiff for declaration of his title and for recovery of possession. The disputed land appertains to plot Nos. 431 and 437. Out of total area of 2.08 acres of plot No. 431, 1 acre only is in dispute in the appeal. Out of total area of 1.05 acres of plot No. 437, only .25 acre is in dispute, in the appeal.
2. The plaintiff's case is that he is sixteen annas Lambardar of the village in which the land is situate. The original tenant Jagannath Seth made a transfer in favour of the present defendant in respect of one acre out of plot No. 431 and .25 of plot No. 437. The plaintiff-landlord had taken steps under the provisions of the C. P. Tenancy Act for declaration that the transaction of sale in favour of the present defendant was not binding against the landlord and for obtaining possession under Section 47 of the said Act. That tenancy case is stated to have succeeded ultimately in favour of the plaintiff in the year 1942. It is further alleged by the plaintiff that out of the total area of 2.08 acres he has taken usufructuary mortgage of .68 acre from the recorded tenant Jagannath Seth. The defendant having unlawfully cut and carried away paddy from the land, in dispute, the present suit was brought for declaration of plaintiff's title in respect of 1.25 acres which was the subject-matter of transfer in favour of the defendant by the original tenant Jagannath Seth and for declaration of his rights as a usufructuary mortgagee in respect of .68 acre appertaining to plot No. 431.
3. The defendant denied the mortgage in favour of the plaintiff by Jagannath Seth and denied also the plaintiff's title in respect of 1.25 acres covered by the tenancy case.
4. Regarding the mortgage, both the Courts have found that the plaintiff has been able to prove his mortgage in respect of .68 acre and they have believed the actual delivery of possession by Jagannath Seth in favour of the plaintiff which was supported by the witnesses examined on behalf of the plaintiff.
5. Mr. G. G. Das, appearing on behalf of the appellant, does not press this appeal in respect of this .68 acres appertaining to plot No. 431 which was covered by the mortgage transaction by Jagannath Seth in favour of the present plaintiff. He confines his appeal to an area of 1.25 acres which is one acre out of plot No. 431 and .25 out of plot No. 437, which was exactly the Subject-matter of the tenancy case, His contention is that the onus primarily rests upon the plaintiff to prove his title to the property in order to succeed the case of ejectment and that the proceedings taken under Section 47, C. P. Tenancy Act not having conferred any title in favour of the present plaintiff after its termination, the suit is bound to fail. His contention does not seem to have any substance, in my opinion. Section 46, Clause (3), C. P. Tenancy Act, 1898, runs thus :
'No occupancy tenant shall be entitled to sell, make a gift or mortgage, sub-let (except for a period not exceeding one year) or otherwise transfer his right in his holding or in any portion thereof, and every such sale, gift, mortgage, sub-lease (other than for a period not exceeding one year) or transfer shall be voidable in the manner and to the extent provided by the two next following sections : .....'
It appears so clearly from the provisions of Sub-section (3) that the transaction of sale in favour of the present plaintiff by the recorded tenant Jagannath Seth was liable to be avoided by the landlord-plaintiff having recourse to the proceedings which are provided for by the next following sections. In fact the plaintiff took proceedings under Section 47 to avoid unauthorised sale and to be put in possession. Section 47, Sub-section (1) runs thus :
'If an occupancy tenant transfers any portion of his right in any land in contravention of the provisions of the last foregoing section any such person as would be entitled to inherit his right in the holding in the event of his death without nearer heirs, or the landlord from whom the tenant held the land, may, on an application to a Revenue Officer, made within two years from the date on which in pursuance of the transfer the tenant parted with possession of the land, be placed in possession, subject, so far as the Revenue Officer may, in accordance with rules made by the Local Government, determine, to his acceptance of the liabilities of the transferring tenant for arrears of rent and for advances made by the landlord or other persons for the necessary expenses of cultivation.'
Now, in my opinion, the proceedings taken under Section 47 having finally terminated in favour of the present plaintiff and manifestly that he had taken possession through the Revenue Officer of the property in dispute, it has got to be observed that the defendant is an absolute trespasser and that he is not entitled to be in possession of the property as against the land-lord. There cannot possibly be any suggestion that after the termination of the tenancy case and after the transaction in favour of the defendant having been avoided in accordance with the provisions of the Tenancy Act, the defendant has any vestige of right to be in possession. Further the landlord having taken legal measures for being put in possession of the property on account of the unauthorised transfer must be deemed in the eye of law to be in possession as of right. It is certainly the decided view of their Lordships of the Privy Council that the landlord has got title in respect of the lands in his estate. As such he has got his paramount title and possession by lawful means, and if the defendant, as absolute trespasser, has dispossessed the plaintiff, the plaintiff is legally entitled to be restored to it.
6. The only point, taken up by Mr. G. G. Das, having failed, the appeal fails and is dismissed with costs.