1. In a lease executed by defendant 4 in favour of the landlords whose interest has now devolved upon the plaintiffs, creating a miras karsha, there was a covenant that if the tenant transferred the holding without the landlord's consent the landlord would have the right of re-entry. In 1326 defendant 4 sold the holding to defendant 1 who purchased it in the benami of defendant 2. Thereafter the plaintiffs brought the present suit for recovery of khas possession of the holding on the ground of breach of the covenant and also of abandonment. The defence was that defendant 4 was not aware of the stipulation in the lease and that she had a permanent transferable interest in the holding. The most important question raised at the trial was whether the plaintiff's suit was maintainable in view of Section 155, Ben. Ten. Act. There was also a denial of abandonment inasmuch as defendant 4 had taken a sublease from the purchaser (defendant 1) of the holding in suit. The Munsif found both the points in favour of the plaintiffs and gave them a decree. On appeal the learned Subordinate Judge has reversed the findings of the Munsif on these two points and dismissed the plaintiff's claim for khas possession allowing them a decree declaring their title to the oshat nimhowla and mirasijara claimed by them and further declaring that defendant 4 had no right to transfer the holding in suit.
2. The plaintiffs have appealed and it is argued on their behalf that the view of law taken by the learned Subordinate Judge on the two vital points raised in the case viz., the application of Section 155, Ben. Ten. Act, and the abandonment by defendant 4 are erroneous.
3. With regard to the first point : the question that falls for determination is whether a case of breach of covenant giving the right of re-entry to the landlord is covered by Section 155, Ben. Ten. Act, and makes it compulsory on the landlord in suing on the covenant for recovery of khas possession to serve a notice upon the tenant under that section. That a covenant which gives the landlord the right of re-entry, on the tenant transferring the holding, is subject to the provisions of the Bengal Tenancy Act, cannot be doubted. It has been held that even if there be such a covenant under which the landlord can take possession of the holding without the intervention of the Court, he is unable to do so by virtue of Section 89, Ben. Ten. Act : Buddhimanta Paramanik v. Sarat Chandra  13 C.L.J. 672. Section 155, so far as it is relevant to the present purpose, says that a suit for ejectment of a tenant, on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular breach complained of prima facie, and giving their natural meaning to the words of the section it is clear that, whenever a landlord sues for ejectment of a tenant, he is bound to follow the procedure laid down in Section 155, Ben. Ten. Act. But, on the authority of the decision in the case of Dwarka Nath v. Mathura Nath  24 C.L.J. 40 it is argued that where a tenant holding under a lease covenanting against alienation sells the tenancy he ceases to be a tenant and, therefore, Section 155, Ben. Ten. Act is not applicable in his case.
4. The high authority of the decision has made it incumbent upon me to look very closely into the law and the reasoning which induced their Lordships to hold the view expressed therein. With very great respect I do not find anything either in Section 155 or in the general law to hold that because a tenant commits an act in breach of the terms of the tenancy, he ceases to be a tenant within the meaning of Section 155. He continues to be a tenant until he is declared by a Court of justice that he has forfeited his tenancy and is liable to be ejected : Section 89, Ben. Ten. Act. The view taken by one of the learned Judges in that case seems to be otherwise, but the wording of Section 155 is so general and clear that it cannot be questioned that the application of the section does not depend upon the nature of the covenant the breach of which is complained of but it applies to every case where the landlord sues the tenant for ejectment even though on the allegation that he has forfeited his tenancy on account of the breach of a covenant in the lease. It is not necessary to dwell further upon this point because the ratio decidendi of the case Dwarka Nath v. Mathura Nath  24 C.L.J. 40 is not applicable in the present case. The learned Chief Justice held that the purchaser from a tenant under disability as regards transfer is a trespasser and, therefore, he cannot rely on Section 155, Ben. Ten. Act, which is not applicable to one in his position. Mookerjee, J., based his judgment more on this fact than on any other. He observes:
In the case before us it is, in my opinion, plain that no title passed to the defendant 1 by the execution sale; the landlord has not waived forfeiture by receipt of rent or otherwise; and the forfeiture must be held to have taken affect from the date of sale. Defendant 1 thus cannot take advantage of Section 155, Ben. Ten. Act, as he is not a tenant but a trespasser. The original tenants are quite content with the decree for ejectment and do not claim to be relieved against forfeiture.
5. This view does not commend itself to me inasmuch as the plaintiffs sue for recovery of possession and they mast prove, even in the presence of a trespasser, that they have obtained the right to recover possession by following the procedure as laid down in law. In view of the, facts of the present case we need not consider this question further. Defendant 4, the original tenant, has appeared in his suit and objected to the plaintiff's recovering possession of the holding. In this connexion we prefer to follow the ruling in the case of Afiladdi v. Satish Chandra Bannerji  29 C.L.J. 40, where the learned Judges held that Section 155, Ben. Ten. Act applies to every case of breach such as breach of covenant against alienation. In this view I am of opinion that the view taken by the learned Subordinate Judge that the plaintiff's present suit is, barred under Section 155, Ben. Ten. Act, is correct.
6. With regard to the second question, that is, abandonment, the Subordniate Judge has found that defendant 4 is still in possession of the land; she was sued for rent by the plaintiffs for a period after the transfer, and there is no evidence that there was any repudiation of the tenancy by defendant 4. On these grounds he held that there was no abandonment in law. With regard to the second ground as regards the suit for rent, he is not quite precise. The sale toy defendant 4 was on 22nd Kartick 1326, and the suit for rent was for the years 1323 to 1326 Pous. There was an overlapping of a few months only and there 19 nothing to show that the plaintiffs, were aware of the sale by defendant 4 to defendant 1, before they brought the rent suit. The other ground seems to me on the authorities to support the view of the lower appellate Court. In Monmatha Kumar v. Josada Lal : AIR1924Cal647 , it is said that a landlord is not entitled to treat a hold-ling abandoned where the original tenant is in possession as a sub-lessee without some act of repudiation of tenancy by him. I am not prepared to accept the view without further consideration as it would seem that the very fact pi the tenant transferring the whole of the holding to a stranger and attorning to him, is sufficient evidence of repudiation of tenancy under the original landlord. But I am not at present disposed to differ from the view taken in that case and the other cases which it has followed. I must, therefore, hold that the judgment of the lower appellate Court is substantially correct and must be upheld. The appeal is dismissed with costs.
7. The finding of the Subordinate Judge regarding the status of the defendant who has tranferred his interest is that that defendant's interest was a nontransferable occupancy holding. The case has been argued before us on that footing both sides having accepted that finding. The suit was instituted by the plaintiffs for ejectment of both the transferor and the transferee from the land of the holding. The question is how such ejectment may be effected. The grounds on which the ejectment is prayed for are : firstly, that there was a breach of covenant against alienation in which there is a proviso for re-entry by the landlord; secondly that the tenant has abandoned the holding. With regard to the relief sought on the first ground the question is whether or not the vendor is still to be considered a tenant for the purpose of the suit for ejectment. In the first place, the provisions of Section 155, Ben. Ten. Act, undoubtedly relate to1 all cases of breaches of conditions which create forfeiture of tenancies and render the tenants liable to ejectment, and therefore covenants restraining alienation must be held to be included within the scope of the section. A further consideration is that the tenancy being an occupancy holding unless the relationship of landlord and tenant is determined by some act on the part of the contracting parties or by operation of law that relationship continues and the vendor must therefore be a tenant till he is ejected under the provisions of Section 155, Ben. Ten. Act. For these reasons I am entirely in agreement with the view expressed by a Bench of this Court in Afiladdi v. Satis Chandra  29 C.L.J. 40. In that case also as in the present one the tenant who had sold the holding which was also an occupancy holding had remained in possession by taking a sublease from his vendee; and it seems to me, specially in cases of this nature, that there can be no doubt the notice required by Section 155(1) is necessary before a tenant can be ejected. In the case of Dwarka Nath v. Mathura Nath  24 C.L.J. 40, it appears that the tenants had vacated the land, and took no interest in the result of the suit for ejectment, and therefore as the purchaser who was the only contesting party was a trespasser, as far as he was concerned, no notice was necessary.
8. The other ground on which ejectment has been sought cannot be supported, on the rulings of this Court in various cases Monmatha Kumar Kay v. Jasoda Lal Podder : AIR1924Cal647 ; Siperunnessa Bibi v. Bamdeb Rai  24 C.W.N. 117 and Madar Mondal v. Mahima Chandra Mazumdar  33 Cal. 531. In all these cases it has been held that there a non-transferable occupancy holding is sold by the raiyat who after transfer takes sublease from the vendee and continues in possession, there is no abandonment of the land, and there is nothing in the mere act of transfer to show any intention either to abandon the holding or to repudiate the relationship of landlord and tenant. This being the view held by this Court in various cases, we are bound to follow that view. I accordingly agree with my learned brother that this appeal must be dismissed with costs.