Mitra and Geidt, JJ.
1. The defendants Nos. 1, 2 and 3 were in occupation of the lands in dispute in this case under the plaintiffs. Whether they had a right of occupancy or not was a question raised in the pleadings and was answered by the Munsiff in the affirmative. The lower Appellate Court has not come to any distinct finding on the question.
2. The third issue raised in the case is 'whether defendants Nos. 1, 2 and 3 have any jatnai right in the lands in suit and if so, whether the same right is transferable.' The second part of the issue has been answered, namely, that the jamai right is not transferable. The first part has not been distinctly answered in the judgment of the lower Appellate Court. If we had agreed with that Court in the view it has taken of the effect of the transfer by defendants Nos. 1, 2 and 3 of their right as occupancy raiyats, there would be no necessity for a remand. But the lower Appellate Court not having come to any distinct finding on the question raised in the first part of the third issue, the case must go back for a distinct finding on the point, as we do not agree with it as to the effect of the transfer.
3. The main question, however, argued before us relates to the effect of the sale by defendants Nos. 1, 2, and 3 to defendant No. 4 and their obtaining a sublease from defendant No. 4. If the defendants Nos. 1 to 3 have a non transferable right of occupancy, are the plaintiffs entitled to a decree for khas possession not only against defendant No. 4, but also against defendants Nos. 1 to 3. The defendant No. 4, though he was the purchaser, did not put in any defence and he is not an appellant before us. The appeal has been presented by defendants Nos. 1 to 3 only, who are actually in occupation of the land. As regards defendant No. 4 there can be no doubt that he did not acquire any right by his purchase, if the right of defendants Nos. 1 to 3 was an occupancy right. The plaintiffs are therefore entitled to a decree for possession against defendant No. 4* But are the plaintiffs entitled to get khas possession by evicting the defendants Nos. 1 to 3?
4. In a case very similar to the present, Dinanath Roy v. Krishna Bejoy Saha (1904) 9 C.W.N. 379 it was held that the landlord was not entitled to khas possession against the original tenants, who were still on the land and were cultivating the same. A decree was passed against the purchaser defendants. It appears to us that the view taken in that case is correct and we accordingly follow it.
5. The contention before us is that the mere sale of a right of occupancy to a third person, notwithstanding that the vendors remain in occupation of the land under a sublease from the purchaser, causes an abandonment in law and therefore the landlord is entitled to re-enter by ejecting the original tenants. The cases of Dwarka Nath Misser v. Hurrish Chunder (1879) I.L.R. 4 Calc. 925 and Kallinath Chakravarti v. Upendra Chunder Chowdhry (1896) I.L.R. 24 Calc. 212 have been cited before us as supporting this contention. The case of Dwarka Nath Misser v. Hurrish Chunder (1879) I.L.R. 4 Calc. 925 was decided when the Bengal Tenancy Act was not passed and the latter case was decided on the appeal of the purchaser defendants, who according to the view which we have already expressed and which was taken in the case of Dinanath Roy v. Krishna Bejoy Saha (1896) I.L.R. 24 Calc. 212 had no right to remain on the land as against the landlord. These cases are therefore distinguishable from the present case.
6. On the other hand the case of Srishteedhur Biswas v. Mudan Sirdar (1883) I.L.R. 9 Calc. 648 supports the view, which we are disposed to take. In Nurendro Narain Roy v. Ishan Chunder Sen (1874) 22 W.R. 22, which is the leading case on the subject, Sir Richard Couch in delivering judgment of the Full Bench while discussing the question of the right of the landlord to re-enter on a sale 'by the original tenant .having only a right of occupancy, says: 'The second question is whether, if it was not transferable, it is still in existence in Kristo Das or his heirs, and being in existence will it prevent the plaintiff from ejecting the defendant? Now if a raiyat having a right of occupancy endeavours to transfer it to another person, and in fact quits his occupation and ceases himself to cultivate or hold the land, it appears to me that he may be rightly considered to have abandoned his right and that nothing is left in him, which would prevent the zemindar from recovering the possession from the person, who claims under the transfer.' What is relied on by Sir Richard Couch in his judgment is that when the tenant quits the land and ceases himself to cultivate, or to hold the land, he abandons thereby the right of occupancy. Now if we read the words of the learned Chief Justice along with Section 87 of the Bengal Tenancy Act, there can be no doubt that in order to entitle the landlord to -re-enter on abandonment by the tenant, it must be an abandonment in the words of Section 87, namely, that the raiyat voluntarily abandons his residence without notice to the landlord and without arranging for the payment of his rent as it falls due, and ceases to cultivate. In such a case the landlord's entry would be legal and he may then let out the land to another tenant or take it into cultivation himself.
7. In the present case the original tenants are still in occupation and cultivating the lands and they are the persons, who are resisting the plaintiffs, and we are unable to hold that the landlords, the Plaintiffs, are entitled to re-enter when there has been no abandonment.
8. As we have said we agree with the judgment in Dinonath Roy v. Krishna Bejoy Saha (1904) 9 C.W.N. 379 and we accordingly are of opinion that the decision of the learned Judge in appeal is erroneous as-regards the case of these defendants.
9. We think therefore the case must go back to the lower Appellate Court for a finding on the point indicated in the first part of our judgment. If the learned Judge comes to the conclusion that the defendants Nos. 1 to 3 had aright of occupancy he must affirm the judgment of the Munsiff,' otherwise he must decree the suit.
10. The costs of this appeal will abide the result.