1. This appeal arises out of a suit for recovery of khas possession of a non-transferable occupancy holding on the ground of abandonment. The allegations on which the plaintiffs brought the suit were that the land was held by one Sukchand under the plaintiffs, that Sukchand sold the land to one Monsur Ali on 17th Chaitra 1334 corresponding to 30th March 1928 without making any arrangement for payment of rent with the result that there was an abandonment of the holding by Sukchand on 13th March 1928 and that when on 25th Jaista 1346 corresponding to June 1929 the plaintiffs went to take khas possession of the land they were resisted by the defendants. The defence inter alia was that the defendant had taken a sub-lease of the holding from Sukchand so long ago as 1318 corresponding to 1911 and having acquired a right of occupancy by local custom he was not liable to be ejected. This defence found favour with the trial Judge and the Court of first instance dismissed the plaintiff's suit. On appeal this decision of the trial Judge was reversed and the learned Subordinate Judge who heard the appeal gave a decree to the plaintiff holding that as the sub-lease of the defendant was in contravention of the provisions of Section 85, old Ben. Ten. Act. any acquisition by the defendant of a right of occupancy by local custom would be of no avail against the landlord and could not save the defendant from eviction. The defendant is the appellant before me.
2. The facts that were either admitted by the plaintiffs or found in the case were these (1) the defendant took a sub-lease of the holding from Sukchand in 1911 considerably more then 12 years before the institution of the suit in 1929; (2) Sukchand transferred the holding which was not transferable and gave up possession without making any arrangement for payment of 30th March 1928 and (3) when the plaintiffs went to enter upon the land in June 1929 they were resisted by the defendant. The question is whether on these facts the plaintiffs were entitled to a decree for eviction. I am of opinion that they were not and my reasons for that opinion are as follows: Sukchand may have abandoned the land on 30th March 1928 and the right of re-entry may have accrued to the plaintiffs from 31st March 1928. But so long as the plaintiffs did not choose to exercise that right there was no determination of the tenancy and so long as there was no determination of the tenancy the defendant who was a sub-tenant of Sukchand could not be characterised as a trespasser. It was only when the plaintiffs attempted to enter upon the land in June 1929 that the tenancy terminated. But before that date the new Bengal Tenancy Act had come into operation and the defendant who was certainly an under-raiyat in February 1929 when the new Bengal Tenancy Act came into force was entitled to have all the benefits which are given to an under-raiyat Under Section 87, Sub-section (5) of the new Act. Under that sub-section the defendant before he can be evicted is entitled to an offer from the landlord to hold the land at the rent paid by him to Sukchand and as in the present case there was no such offer the plaintiffs were not entitled to a decree for eviction. The result is that the appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance dismissing the plaintiff's suit restored with costs in all Courts.
3. I agree.