1. This is a Letters-Patent Appeal from a decision of my learned brother Jack, J., sitting in second appeal. The learned Judge gave a certificate that the case was a fit one to be taken on further appeal.
2. The plaintiff is a person who has been found to be the transferee of a tenancy which is a nontransferable occupancy tenancy. The lands comprised in the tenancy were originally part of a larger holding which had been settled in raiyati right. The landlord brought a suit for rent, obtained a rent decree and purchased that previous holding himself. Thereupon, the holding having come to an end, he settled the southern portion of two plots and one-third undivided interest in a homestead plot with one Uma Charan Mitra. Uma Charan sold to the plaintiff the whole of this new tenancy; but at the time of the sale he stipulated that the transferee would grant him an under-lease of the undivided one-third share in the homestead plot. The finding of fact is that Uma Charan from the time of this sale down to the material times was living in huts in that homestead plot by virtue of the lease which he had taken from his own transferee at a trifling rent. In these circumstances, the plaintiff wanted to cultivate the culturable land of the tenancy which he had bought from Uma Charan and ho appointed bargadars and these people were interfered with by certain persons acting under the authority of the original landlord and the original landlord took possession of the culturable land. As a matter of fact, the only land in this suit is the southern half of Dag. No. 578. The plaintiff therefore brings his suit to recover the land which the superior landlord has taken possession of.
3. The trial Court framed an issue: 'Has Uma Charan Mitra abandoned the holding?' and that issue the trial Court answered by saying that, as Uma Charan, had remained in his original homestead plot, there had been no abandonment. The lower appellate Court insisting that the tenancy was not a holding within the meaning of the Bengal Tenancy Act because it comprised an undivided share in the homestead plot treated the question of abandonment as though the whole of the larger tenancy had still been subsisting and it found that Uma Charan had remained upon the homestead land; but apart from that finding it came to no conclusive finding of fact binding upon this Court as to whether or not Uma Charan's tenancy had been abandoned.
4. In that state of affairs, the matter came before the learned Judge of this Court and Jack, J., pointed out very properly that the old tenancy had come to an end and that the tenancy of Uma Charan was an entirely new one having nothing to do with the proper tenancy. He then observed that in this case he did not have a landlord seeking possession against the transferee but the transferee seeking to recover land from the landlord. In my judgment, that makes no difference in this case. If the transaction of transfer was a transfer of the whole so as to (amount to an abandonment of the land, then no doubt the landlord would be entitled to re-enter against the transferee. If it was not and the landlord by force re-entered against the transferee, the transferee was held entitled by the decision of the Full Bench in Dayamoyi v. Anand Mohan  42 Cal. 172 to bring a suit to recover the land independently altogether of Section 9, Specific Relief Act. I do not think therefore that it makes any great difference to the decision of this case at all events on any point of principle that the plaintiff is the transferee.
5. When I come to consider the question on which the rights of the parties depend, it may be put in two ways. It may be said, first of all: has there been an abandonment? and it may be said, secondly: has there been a repudiation of the relationship of landlord and tenant on the part of Uma Charan? Now, the position when a transfer is made on the footing that an under-lease shall be given to the transferor is, in my judgment, this that the transaction is to be treated not as a transfer of the whole interest in the holding but as being no more than a transfer of a part, and it is I think well settled, on the decisions, that had Uma Charan in this case taken an under-lease of the agricultural land as well as of the homestead a case of abandonment could not have been made out against him. That is a matter which has come before the Courts on a good many occasions; but if I may be allowed to cite the judgment, which on the whole I prefer, I would cite the judgment of Mukherji, J., in the case of Ramesh Chandra Mitra v. Daiba Charan Das 0065/1924 : AIR1924Cal900 . In considering that class of case, however it may make a difference whether the only part of the land of the tenancy that is retained by the transferor is the homestead part, all agricultural land going to the transferee for his own occupation, and, even in that connexion, it may make a difference whether the transferor retains his interest in the homestead as a mere matter of kindly permission of the transferee or by virtue of a definite settlement giving, him a right to continue to remain on the homestead. In the present case, we have an instance where the tenant has not retained for himself any agricultural land; on the other hand, the evidence is that at the time he made the transfer he definitely stipulated for a lease of the homestead plot and he has continued to remain in occupation thereof.
6. In these circumstances, we have to ask ourselves whether the plaintiff is entitled to recover against the landlord or whether we are to say that the landlord has made-out a sufficient case for a defendant, showing that ho is entitled to retain possession of the land of which he is now admittedly in possession. It seems to me that once it is shown that the landlord gave a tenancy to Uma Charan the burden must be upon the' landlord to show that that tenancy came to an end. It is quite clear that there was a certain amount of: resistance at the time and a dispute; and the plaintiff having brought his suit, I do not think it is for the plaintiff to prove independently that there was no abandonment; it is I think for the defendant to show that there was an abandonment entitling him to re-enter. Now, there is no evidence at all that the rent of Uma Charan's tenancy had not up to the time of re-entry been paid. We do not know in whose name it was paid; we do not know whether it was paid or not. The evidence appears to be on that point a complete blank. In these circumstances, we have to see whether we can say that we are satisfied that there was an abandonment or whether the circumstance that the homestead land remained resettled with Uma Charan throughout would prevent us from holding that there was an abandonment. In my judgment, it ought to prevent us from so holding. if one looks to the cases, 1 think the position is shortly this: in some cases, the tenant remained on the homestead as a mere matter of permission, that is So say, it was no part of the original bargain at the time of the' transfer, and It was quite plain and proved that the tenant had ceased paying rent or making any provision for the payment of rent: Sailabala v. Sriram [19071 11 C.W.N. 873 and Ishan Chandra v. Nishi Chandra  41 I.C. 378. I was a party to the decision in the case of Jogesh Chandra v. Radha Gobinda Rai : AIR1928Cal848 where the tenant was allowed to live on until he died for a space of about a year In the hut. He was a tenant who had been foreclosed, and symbolical possession had been obtained against him and it was quite clear therefore that his remaining on was not a question of right on his part at all. That is very different from the facts of the case before us. I am not prepared to hold on these facts that there was an abandonment so as to entitle the landlord to re-enter. It may foe observed that abandonment' within the meaning of Section 87, Ben. Ten. Act is defined in this way.
If a 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 etc.
7. So the statute lays a good deal of stress upon 'voluntarily abandons his residence.' I am not prepared therefore to say either under Dayamoyi's case  42 Cal. 172 or under Section 87 of the Act that there was an abandonment.
8. The learned Judge however did not proceed upon that footing. He proceeded upon what he called 'repudiation of tenancy.' He said it is true:
In any case, there has been an abandonment. Uma Charan has, it is true, taken a lease of the homestead portion from the plaintiff; but he has repudiated the tenancy under Peary Mohan Nag in his statement on oath to the effect that the plaintiff is his landlord in respect of the homestead; of the other portions of the tenancy the landlord appears to be in possession through his bargadar; and as regards the homestead portion the landlord's title has been repudiated.
9. We have to see whether this ground of 'repudiation of the tenancy' is a valid ground. It is quite clear that this is a somewhat different thing from abandonment.' No issue of this sort was taken at the trial Court; no finding was come to in either Court about it, though I am bound to say that the origin of the learned Judge's observation appears to have been a remark made in passing by the lower appellate Court:
It might be argued in this particular case from the statement of Uma Charan himself that he has repudiated the tenancy inasmuch as he says that the plaintiff is his landlord in respect of the homestead and he is holding it as a tenant under him.
10. If one comes to look at the evidence of Uma Charan, one finds that this agriculturist comes into the box and, in the opening words of his examination-in-chief, says that the plaintiff is his malik as regards the homestead, but formerly it was Peary Mohan Nag. One does not expect an agriculturist to come into the box and define his legal position vis-a-vis one man and vis-a-vis the other stating it in accurate language. No cross-examination was directed to the question whether he repudiated the tenancy, he had taken a sublease through his transferee. The man was only endeavouring to state in his own way the facts which were not in dispute, and it seems to me that to hold on the strength of that statement that he was repudiating the tenancy is altogether out of the question. He ought to have been asked whether he recognized any liability as between himself and his landlord to pay the rent. If he had said 'no,' there might have been some ground for argument that he was repudiating the tenancy. A passing expression used by an agriculturist to try and describe the elementary facts of possession is not to be used against him in the way that is proposed. I am quite satisfied in this case that in the absence of a proper cross-examination, in the absence of a proper case made to that effect and in the absence of any evidence to show that the transferee has not been paying rent in the name of the transferor, it would be wrong for us to uphold the learned Judge's finding on this point.
11. I think therefore that the Letters Patent Appeal must succeed and that we ought to set aside the decree of the learned Judge and restore the decree of the lower appellate Court with costs before the learned Judge and before us.
C.C. Ghose, J.
12. I agree,