1. In this case, the landlord sues the transferee of a non-transferable occupancy jote for khas possession of the holding. It appears that two tenants Raj Mohan and Sonatan held the suit lands as occupancy raiyats under the plaintiff. In execution of a money decree obtained against the tenants as well as of a mortgage decree obtained against them, the holding was sold to the defendant No. 1 and thereupon the tenants took a tenancy under the transferee, remaining upon their homestead portion which was part of the land of the tenancy and also remaining as cultivators of a certain number of plots being part of the tenancy. In these circumstances, there has been a difference of opinion between the Courts below. The learned Munsif, following Dayamayi v. Ananda Mohan  42 Cal. 172 has held that, as the tenants on longer pay rent to the plaintiff and as they now claim to hold the home-stead and some plots of land within the jama under the transferee and not under the plaintiff and as there is no independent evidence that the tenants still regard the plaintiff as their landlord, it is clear that there has been an abandonment of the tenancy within the meaning of Dayamayi's case  42 Cal. 172. He proceeded in theory entirely upon abandonment and as a matter of fact, is the first Court, little, or nothing appears to have been said either about repudiation or about relinquishment. The learned District Judge of Jessore has taken another view. He has treated the case as a question solely of abandonment. He has pointed out that the plaint spoke of abandonment and that there is no allegation of relinquishment or repudiation. He has found that, upon Dayamayi's case and certain subsequent decisions, there is no abandonment and he has, accordingly, as against the transferee, dismissed the suit. There was another defendant against whom the suit was also dismissed. In my opinion that circumstance helps neither party and I do not propose to refer to it again.
2. This is a typical case and one constantly coming before the Court. The conditions under which we have to decide it are, I think, these : we are bound by Dayamayi's case; but the decisions previous to Dayamayi's case are not now necessarily binding, upon us. This circumstance is of the less importance that the relevant decisions prior to Dayamayi's case are in almost no simple circumstance consistent or well settled. So far as regards the subsequent cases purporting to interpret Dayamayi's case, we are, I think, bound either to follow those decisions or to refer the matter to a Full Bench. But above and beyond these oases to which I have just very generally referred, we have to remember that there stand the express provisions of the Bengal Tenancy Act. In dealing with this case, I propose to go first to the decision of Dayamayi's case and to examine the state of the authorities applicable to such a case as the present.
3. In the second paragraph in the reported judgment of Dayamayi's case  42 Cal. 172 to be found in (42 Cal. p, 223) the proposition laid down by the Full Bench is in these terms: 'Where the transfer is a sale of the whole holding, the landlord in the absence of his consent, is ordinarily entitled to enter on the holding; but where the transfer is of a part only of the holding, or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.' It will be observed that, in both branches of that proposition, occurs the word 'ordinarily' and that word by itself shows that the circumstances mentioned in each branch are being : regarded as evidence of, or, as importing reference to, some higher, more precise or more ultimate test. One asks oneself in the present case whether the circumstance that the tenants are still upon their homestead lands and are still cultivating part of the holding is a consideration which takes the case out of the qualification intended by the word 'ordinarily'. I am quite clear that such a case as this is not an ordinary case for the purpose of the proposition. In the second part of the proposition it would appear that the ultimate test is abandonment (under Section 87), relinquishment or repudiation of the tenancy. But it does seem to mo possible that the meaning of the first part of the proposition is that, on proof that a tenant has transferred the whole of his holding out and out, the Court may conclude that there is an abandonment not necessarily within the meaning of Section 87 or a repudiation of the tenancy that would not necessarily be allowed as by itself a sufficient reason for eviction under Section 25 of the Bengal Tenancy Act. I say that is a possible interpretation of the language of the first branch. It has to be remembered that, whether they were right or not, there were a considerable number of decisions to the effect that Section 87 is not exhaustive. Whether the Court meant to keep that open is not clear. In like manner, as regards repudiation, the law as I understand, is that a mere denial of the landlord's title or of the relationship of landlord and tenant is not, by itself, a ground of eviction, having regard to the express terms of such sections as Sections 10 and 25: but that, if in a previous suit, a tenant successfully denied his landlord's title then, on the principle of estoppel by record, an eviction may take place. This question whether in interpreting the word 'ordinarily' in the first part of the proposition, we are to have sole regard to Section 87 and to the provisions of the law as regards eviction which I have already expressed is, to my mind, the main difficulty in these cases. In the present case however, I am of opinion that, on the evidence and on the findings, there is no justification for our holding that there is, in any legal sense of the word, an abandonment or in any legal sense of the word, a repudiation. In this matter, one has, first of all, to remember that Section 87 speaks of the tenant abandoning his residence without making provision for the payment of rent and ceasing to cultivate the holding by himself or another person. In the present case the tenant has not changed his residence and has not altogether ceased to cultivate the holding. There is no proof of refusal to pay rent. It seems to me, that, on these facts, any mere inference to be drawn from the fact of the sale in execution cannot amount to abandonment or repudiation in any sense of those expressions justifiable under the law. It has to be observed that in this case the sale was forced upon the ton-ants. Assuming that there was mortgage decree as well as money decree, still there can be no doubt that the money decree alone would have necessitated the sale. That being so, the tenants are in this position that they cannot question the title of the transferee. The landlord may elect to do so or may elect not to do so. One has to look to what the tenants in these circumstances have done. Not knowing whether the landlord will or will not assent they have made terms with their transferee which provide that they shall have still a residence on the suit lands and shall still have the right to cultivate some of the lands. It seems tome that the tenants have done as much as they reasonably could in these circumstances to escape conduct amounting to abandonment or amounting to repudiation.
4. I do not propose here to discuss the question whether there is any real justification for the proposition that there may be abandonment apart from the terms of Section 87. Having regard to the provisions as regards eviction and to the express terms of Section 87, it is manifest that there is considerable difficulty in maintaining the doctrine of abandonment outside the Bengal Tenancy Act. The only common law on the subject known to me would be the general principle that, for breach of a condition of a tenancy as distinct from a mere covenant the landlord may re-enter. So far as contractual conditions are concerned, they are covered by the express language of such sections as Section 25. So far as I know, ejectment for breach of an implied condition has always been limited to cases either of estoppel by record or of cases where the tenant has made an attempt to assert a title paramount to landlord in himself or in some other person.
5. It was contended by Mr. Sen that, although between landlord and tenant there might be no right to evict, as between the landlord and the transferee whom he has not recognised and who has no right as against him, a decree for ejectment would be quite admissible. For that proposition, there is undoubtedly some authority prior to Dayamayi's case  42 Cal. 172 in particular, in the case of Dinanath Roy v. Krishna Bijoy Shaha (1905) 9 C.W.N. 379 and Madar Mandal v. Mohim Chandra Mazumdar (1906) 633 Cal. 531. Since Dayamayi's case  42 Cal. 172 I do not regard these decisions as binding, and in my opinion that proposition is absolutely indefensible on any principle. It is perfectly true that the transferee can claim no right as against the landlord; but unless the landlord has a right to present possession, he cannot possibly maintain ejectment against anybody whether he be the tenant's transfereer the tenant's invitee or licensee or tenant's uncle, cousin or aunt. It is quite impossible that, on any principle of law, the landlord who has a mere right of reversion expectant on the determination of the tenancy and who has not as against his tenant the right to end the tenancy could maintain ejectment against a third person merely because that third person has no title in himself. Accordingly, in this particular case, the fact that the suit was brought against the transferee and not against the tenants, is in my pinion, no reason whatever why the landlord should succeed. The correct form of the question in these cases was put by Sir. R. Couch in Narendra Narain Roy v. Jshan Chandra Sen (1874) 22 W.R. 22 and is quoted in Madar Mandals case (1906) 633 Cal. 531 - one has to find whether nothing is left in the tenant which would prevent the zemindar from recovering the possession from the person who claims under the transfer. The landlord has to show that he is entitled to possession of the land now. If he is not entitled to possession of the land now, then the only remedy which he could in any case get against the transferee would be declaration that the transferee has not got the tenancy right in the landlord's property.
6. The cases subsequent to Dayamayi's case do not, in my opinion, conflict with the view expressed. On the contrary, the case of Sehrennessa Bibi v. Ramdab Rai (1919) 24 C.W.N. 117 seems to me almost exactly in point and the case of Monmatha Kumar Roy v. Jasoda Lal Poddar A.I.R. 1924 Cal. 647 to which Mr. Sen has been so good as to refer us this morning is in my opinion, exactly to the same point. For these reasons, I think this appeal fails and should be dismissed with costs.
7. I entirely agree in the 6rder proposed to be passed by my learned brother, but in view of the importance of the questions involved I would make a few observations as to what I consider about the matter.
8. The original tenants, according to the findings of both the Courts below, are still in possession of their homestead and several of the culturable plots, under the transferee, the defendant No, 1. It has not been found, nor do I think has it been suggested, that the original tenants ever Vacated the holding in pursuance of the sale. The sale therefore operated in effect not as a transfer of the entire holding but only of a portion of it., There is authority for the proposition that in such a state of things the sale in substance is a sale of a portion of the holding (See Nabakisore Saha v. Dhananjoy Saha (1916) 20 C.W.N. 610. Now applying, to this position the rule laid down in the case of Doyamoyi v. Ananda Mohan Chowdhury  42 Cal. 172 the landlord would not be. entitled to recover possession of the holding unless there has been (a) an abandonment within the meaning of Section 87, B.T. Act or (b) relinquishment of the holding or (c) a repudiation of the tenancy. It is quite clear then that in order to succeed, the landlord will have to bring his case within one or other of the aforesaid three classes.
9. Now as to abandonment, it is not open to us upon the plain terms of the aforesaid rule to consider whether the abandonment necessary to be established to confer a right of re-entry on the landlord may not be of a description not covered by Section 87 of the Bengal Tenancy Act, a point upon which the decisions appear to be apparently conflicting.
10. The terms 'abandonment,' 'relinquishment' and 'repudiation' are terms distinct and not interchangeable, though proof of one may be some evidence, though not conclusive, yet relevant for establishing facts and circumstances, which might go to constitute another. Section 87 of the B.T. Act though it does not purport to define abandonment, plainly indicates what it is. The material elements are (i) that the raiyat should abandon his residence and that he should do so voluntarily without notice to his landlord, and without arranging for payment of his rent as it falls due; and (ii) that he should case to cultivate the holding either by himself or by some other person. In the case of Narendra Nath Roy v. Ishan Chandra Sen (1874) 22 W.R. 22 which was a case under Act VIII (B.C. of 1869), Chief Justice Sir Kichard Couch, observed that if a raiyat having a right of occupancy, endeavours to transfer it to any person, and in fact quits his occupation and ceases himself to cultivate or hold the land, he may be rightly considered to have abandoned his right. In Mather Mandal v. Mahima Chandra Majumdar (1906) 633 Cal. 531 the Court observed that 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 Ram Prosad Koeri v. Joahir Roy (1908) 12 C.W.N. 899 it was held that abandonment is the effect of the act of tenant in vacating the holding without making arrangement for payment of his rent as it falls due and for cultivating the land. In Debendra Narain Singha v. Narendra Narain Singha (1919) 24 24 C.W.N. 110 it was held that where a tenant having a non-transferable right of occupancy sells such right to a third person and having obtained a sub-lease from the purchaser remains in possession of the land and cultivates it, the landlord in the absence of repudiation by the tenant of his relation to the landlord as such, is not entitled to recover possession, inasmuch as it does not amount to abandonment, and the learned Judges relied for this proposition upon the decisions in Madar Maadal v. Mahima Chandra Majumdar (1906) 633 Cal. 531, Rajani Kanta Biswas v. Ekkori Das (1907) 34 Cal. 689 and Kalim Sheikh v. Mochan Biswas (1907) 34 C.L.J. 113; the decisions in the case of Ishan Chandra Dhupi v. Nishi Chandra Dhupi (1918) 22 C.W.N. 853 and Sailabala Devi v. Sreeram Bhattacharjya (1907) 11 C.W.N. 873 may perhaps be distinguished on the ground that in those cases the raiyat had parted with the whole of the agricultural portion of the holding and remained in possession of the homestead portion only and ceased paying rent, circumstances from which abandonment might be inferred. The decision in the case of Kali Nath Chakarabarty v. Kumar Upendra Chandra Choudhury (1896) 24 Cal. 212 in so far as it purports to lay down that where a tenant transfers his non-transferable holding, ceases to pay rent to his landlord and accepts a new tenancy from the transferee and to be based upon the Full Bench Case in 22 W.E. referred to above cannot be treated as dealing with a question of abandonment within the meaning of Section 87 of the Bengal Tenancy Act. In the present case none of the facts which would go to constitute an abandonment has been proved or found by the Courts below. Mere non-payment of rent is not evidence of abandonment though non-payment of rent coupled with non-occupation of land is evidence of an intention to abandon it. Gober Sheikh v. Alimuddin Sheikh (1919) 30 C.L.J. 13.
11. The next question is has there been a relinquishment of the holding? It is sufficient for me to say that it was not alleged that there was any. It is true that rent has not been paid, but mere non-payment is not sufficient, though coupled with other facts and circumstances it may show relinquishment, Nilmony Dasi v. Sonatan Doshayi (1887) 15 Cal. 17.
12. Nextly, has there been a repudiation of the tenancy? I am not prepared to hold that merely entering into an arrangement with the transferee to hold under him a portion of the holding, the sale whereof is binding on the tenant under the law, a portion of the holding having been sold in execution of a money decree and the other in execution of a mortgage decree, would amount to repudiation of the tenancy. If special facts are proved such as were found in the case of Rajendra Kanto Biswas v. Ekkouri Das (1907) 34 Cal. 689 or the refusal on the part of the tenant to pay rent continued for a sufficiently long series of years and is based upon the ground of non-liability, repudiation may be inferred. So also in the case of Manmatha Kumar Roy v. Josoda Lal Karmokar : AIR1924Cal647 to which our attention has been drawn by Mr. Sen this morning it was held that mere execution of a Kabuliat in favour of the transferee does not amount to a repudiation of the tenancy. The original tenants were not parties in the present suit though one of them has been examined as a witness; and what he is alleged to have deposed in the present suit cannot be taken to have constituted a repudiation of the tenancy in the eye of law.
13. A further question arose in the case as to whether the landlord could get a decree for khas possession against the transferee although there was no abandonment, relinquishment or repudiation made out on the part of the original tenants. Mr. Sen contended on the authority of several oases of this Court that a landlord is entitled to have such a decree although he may not succeed in ejecting the original tenants. Reliance has been placed upon the decisions in Madar Mondal v. Mohima Ch. Majumder (1906) 633 Cal. 531 and Dina Nath Roy v. Krishna Bejoy Saha (1905) 9 C.W.N. 379 and other cases upon which they are based. Speaking for myself, and I say this with the greatest respect for the learned Judges who decided these cases, I have not been able to discover any principle upon which these decisions are founded The whole law of re-entry is based upon the principle that so long as the tenancy is not terminated by one or other of the modes indicated above, the tenancy interposes and operates as a barrier and the landlord cannot re-enter. I cannot very well see how the original tenant may not be touched on the ground that the tenancy subsists, and so far as the landlord is concerned the tenancy continues unaffected and the landlord is entitled to look for payment of rent to the original tenant, and yet the landlord can get a decree for khas possession as against the transferee. At any rate, we have not been referred to any decision since the decision in Doyamoyi's case  42 Cal. 172 in which a similar view has been taken. In the case of Monmotha Kumar Roy v. Jasada Lal Karmakar A.I.R. 1924 Cal. 647 under similar circumstances it appears that the landlord only obtained a declaration against the transferee that the latter had no right as against the landlord. Of course if the transferee has not acquired any title by his purchase there is nothing to prevent the landlord from getting a declaration in a Suit properly framed for the purpose, that the transfer was not binding upon him, as was laid down in the case of Sheikh Guzaffur Hossain v. E. Dableish (1896) 1 C.W.N. 162. I therefore agree that this appeal must be dismissed with costs.