1. In the suit with reference to which this appeal arises the plaintiffs sought to eject the defendant, Ramjan Sarkar, from certain land. Their case was that a man Maniruddin was their tenant in respect of a holding with an area of 176 acres and that on 17th Aswin 1335 B.S. corresponding to 3rd October 1928, i.e., before the passing of the Bengal Tenancy Act of 1928, he transferred one acre of this holding to the defendant Ramjan Sarkar. Subsequently, after the passing of the Act of 1928, Maniruddin transferred 4he remainder of the holding to Kalipada Bhattacharjee. The transfer took place on -28th February 1934. The plaintiffs then applied for pre-emption of the portion of the holding which had been transferred to Kalipada Bhattacharjee and an order for pre-emption was duly made in their favour. 'Subsequently, on 10th January 1936, the plaintiffs instituted the suit out of which this appeal arises for the purpose of ejecting Ramjan Sarkar from that portion of the folding which had been transferred to him in 1928. The main defence put forward by Ramjan Sarkar was to the effect that, 'under the law as it stood after the passing -of the Bengal Tenancy Amendment Act of 1928, he was not liable to ejectment. The first Court dismissed the plaintiffs' suit on two grounds. The first was to the effect that under the present law a subsequent 'transferee steps into the shoes of the former tenant. Therefore in the event of such a transfer there can be no abandonment of a holding within the meaning of Section 87, Ben. Ten. Act and the previous purchaser obtains protection under the shield of the purchase by the subsequent transferee.
2. The second ground on which the learned Munsif decided the case in favour of the defendant was that the plaintiffs could not take advantage of their own purchase for the purpose of treating the entire holding as having been abandoned. The lower Appellate Court upheld the decision of the;first Court on the second of the two grounds [mentioned above but the learned Subordinate Judge did not consider it necessary to -discuss the first ground upon which the case has been decided in the defendant's favour by the first Court. The first point tirged in favour of the appellants is to the affect that both the Courts below were wrong in dismissing the plaintiffs' suit on the ground that they cannot take advantage of their own purchase for the purpose of 'treating the entire holding as having been abandoned. In support of the view which has been adopted by both the Courts below reliance was placed upon a decision of this Court in Sorojini v. Romesh Chandra : AIR1936Cal536 . In that case the plaintiff was the landlord of a non-transferable occupancy holding a portion of which had been previously transferred by the tenant who however retained the homestead portion of the holding. The plaintiff subsequently obtained a decree for arrears of rent, purchased the homestead and took possession of the same. On the basis of her purchase she then sought to treat the entire holding as having been abandoned and she sued to recover that portion of the holding which had been previously transferred by the tenant. Mitter J. held that:
It is now well settled that for the purpose of abandonment, a sale in invitum stands on the same footing as a transfer by the act of the occupancy raiyat, and for the purpose of constituting abandonment, the transfer of the entire holding need not be effected all at once. If the entire holding is sold but in parts at different times, it will amount to abandonment as soon as the last transfer is made.
3. The learned Judge held however that as the plaintiff by her purchase stepped into the shoes of the tenant, on the principle adopted in Mohsenuddin v. Bhaganan Chandra (1921) 8 A.I.R. Cal. 444 she could not put forward her right as a landlord to re-enter the abandoned holding. The learned Judge therefore held that
the retention of her character as assignee of the tenant, i.e., of her character as representative of the tenant, is inconsistent with her insisting on her claim to recover possession on the ground of abandonment in her character as landlord.
4. In the present case however the plaintiffs' contention is that the holding was abandoned by reason of the sale by Maniruddin to Kalipada Bhattacharjee on 28th February 1934. They are not relying upon their pre-emption of a portion of the holding as enabling them to treat the whole of the holding as having been abandoned, bud they maintain that their right to re-enter accrued as soon as the last portion of the holding, which had been retained by their original tenant, was transferred to Kalipada Bhattacharjee on 28th February 1934. They are therefore not relying upon their own purchase as giving them the right to reenter, but upon the fact of the abandonment of the entire holding by the original tenant by reason of the sale to Kalipada Bhattacharjee. From this point of view therefore the fact that they subsequently pre-empted the holding under Section 26-F, Ben. Ten. Act, is immaterial. Had this been a case in which the plaintiffs were in fact seeking to take advantage of their own purchase for the purpose of treating the whole holding as having been abandoned, the question would have required serious consideration whether the principles laid down by a Full Bench of this Court in Mohsenuddin v. Bhaganan Chandra (1921) 8 A.I.R. Cal. 444 had not been applied some what too harshly against the landlord in Ruhini Kumar das v. Amiruddin Kaviraj : AIR1932Cal405 and Sorojini v. Romesh Chandra : AIR1936Cal536 and it is even possible that the principles laid down in Mohsenuddin v. Bhaganan Chandra (1921) 8 A.I.R. Cal. 444 might have required reconsideration in the light of the view expressed in connexion with this, matter by a Full Bench of the Patna High Court in Mt. Sheoraji Kuer v. Dhani Mian (1924) 11 A.I.R. Pat. 1. As matters stand, the only remaining question which requires determination is whether or not it can be said that the holding had been abandoned by reason of the transfer to Kalipada and if so, whether this abandonment gave the landlords the right to re-enter. With reference to this matter the learned advocate for the respondent places considerable reliance upon the first ground mentioned 'above upon which the trial Court dismissed the plaintiffs' suit. Under the law as it stood before 1928 the two successive transfers of portions of the holding to Ramjan Sarkar and Kalipada Bhattacharjee would admittedly have constituted a complete abandonment on the part of the tenant which would have entitled the landlords to re-enter under Section 87, Ben. Ten. Act, Sub-section (1) of which is in the following terms:
If a raiyat or under raiyat voluntarily abandons his residence without notice to his landlord and without arranging for payment of his rent as it 'falls due, and ceases to cultivate his holding either by himself or by some other person, the landlord may, at any time after the expiration of the agricultural year in which the raiyat or under-raiyat so abandons and ceases to cultivate, enter on the holding and let it to another tenant or take it into cultivation himself.
5. In this connexion it was held by this Court in Prosonna Kumar De v. Ananda Chandra Bhattacharjee (1926) 30 C.W.N. 231, that for a landlord seeking to re-enter it would not be necessary to prove as a fact that the holding had been abandoned but the abandonment would be a direct inference from the fact that the entire holding had been sold and possession had been given to the purchaser. It must however be considered whether the landlord's right of re-entry on abandonment of a holding has been curtailed by the law as it stood after the amendment of the Bengal Tenancy Act inn 1928. One of the most important provisions of the Bengal Tenancy Amendment Act (Act 4 of 1928) was to enable an occupancy raiyat to transfer his holding or a. share or a portion thereof. The provision to this effect was made in Section 26-B, Ben. Ten. Act, as it stood after amendment which is in the following terms:
The holding of an occupancy raiyat or a share or a portion thereof together with the right of occupancy therein, shall, subject to the provisions of this Act, be capable of being transferred in the-same manner and to the same extent as other immovable property.
6. The main effect of the above provision was to compel the landlord to recognize as his tenant the transferee of his former tenant's holding or of a portion thereof provided the transfer was made in accordance with the material sections of the Bengal Tenancy Act. This new provision however was not retrospective in its purpose and could not therefore operate to compel the landlord to recognize as his tenant a person' to whom a portion of a holding had been transferred before the Amendment Act of 1928 came into operation. Further as the right conferred by Section 26-B was subject to the provisions of the Act, the new Section did not affect the right of the landlord to, re-enter under Section 87 of the Act if the tenant vacated his holding without arranging! for the payment of his rent as it fell due.
7. In the case with which we are now dealing there is no doubt that the original tenant Maniruddin had completely severed his connexion with the holding and any proceedings which might have been instituted' by the landlord to recover the rent of the holding from him would have been infructuous. It is true that, as long as Kalipada Bhattacharjee remained in possession of the transferred share, it might be argued that he would have been liable under Section 146-A, Ben. Ten. Act, as a cosharer tenant in respect of the rent of the entire holding but there can be no doubt that his liability would have ceased as soon as his share was pre-empted under Section 26-F of the Act. Further, even if the landlord had decided not to avail himself of his right to preempt, the transferee tenant might have applied' for a division of the tenancy under the second proviso to Section 88, Ben. Ten. Act. If such division had been ordered by the Court, the landlord would have been entitled merely to recover from the transferee the rent due in respect of the transferred portion only and not rent for the entire holing. It cannot therefore be said that the transferee of a portion of a holding steps into the position of the former tenant except as regards that portion of the holding which has been transferred to him. As long as the original tenant retains the holding or a portion thereof the landlord has some security for the payment of his rent. If, on the other hand, the original tenant severs his connexion with the holding in a case such as that with which we are now dealing the only method by which the landlord can safeguard his interest is by pre-empting the portion transferred or by attempting to recover rent from the transferee in respect of the entire holding. As already pointed out, such a course will afford the landlord no guarantee that he will be able to recover rent for any portion of the holding that may have been transferred previously by the original tenant unless that tenant has made proper arrangements for the payment of the rent as it falls due. The utmost that can be said in the present case is that Maniruddin on severing his connexion with the holding on 28th February 1934, had made arrangements which would safeguard the position of the landlord as regards the recovery, of rent for that portion of the holding which was transferred to Kalipada Bhattacharjee on 28th February 1934, but he had made no such arrangement with regard to that portion of the tenancy which had been transferred to Ramjan Sarkar in September 1928, before the passing of the Bengal Tenancy Amendment Act. In this view of the case, Maniruddin must be treated as having abandoned his holding within the meaning of Section 87, Ben. Ten. Act. The landlords are therefore entitled to re-enter and may evict Ramjan Sarkar from that portion of the holding which was transferred to him in September 1928.
8. Having regard to the considerations mentioned above, the decision of the lower Appellate Court cannot be supported and this appeal is accordingly allowed with costs throughout. The plaintiffs will therefore be entitled to have the suit decreed. Leave to appeal under Clause 15 of the Letters Patent is refused.