1. This appeal arises out of a suit brought by 'certain landlords to eject the defendants from an area of 6 1/2 pakhis of land. This land was formerly in the occupation of one Nidra Bewa. The plaintiffs allege that she has abandoned the land and seek to re-enter on it. The defendants allege that Nidra Bewa sold the land to them 22 years ago, that they have been in occupation of it ever since, and that they have paid the rent since then, though it was received in the name of Nidra Bewa.
2. The Lower Appellate Court has given the plnintiffs a decree. The Subordinate Judge has held that the land was a non-transferable occupancy holding, and that consequently Nidra Bewa's sale of the land to the defendants has given the latter no right to resist the plaintiff's suit for ejectment.
3. The defendants appeal. On their behalf it has been contended
(1) that the mere abandonment of the land by Nidra. Bewa gives the plaintiffs no right to re-enter;
(2) that the defendants are Nidra Bewa's next reversioners, and that consequently Nidra Bewa's abandonment of the land in their favour opens out the succession to them and so the plaintiffs cannot eject them;
(3) that when the plaintiff sold the land in execution of a decree obtained against Nidra Bewa, one of the defendants, Nadiar Chand, was allowed to' pay in the decretal amount and set aside the sale;
(4) that the judgment in the case against Nidra Bewa should not have been used in evidence;
(5) that the land is a kaimi tenure;
(6) that the ruling relied on by the Subordinate Judge, viz., Bani Das v. Jagdip Narain Chowdhry (1896) I.L.R. 21 Calc. 152 has been overruled and
(7) that the defendants are entitled to the benefit of the presumption arising under Section 50 of the Bengal Tenancy Act.
4. It appears to me that it should first be considered what is the nature of the tenancy in dispute. The other contentions raised on behalf of the appellants are of subordinate importance to this question.
5. It is evident that the Lower Appellate Court has found as a fact that the tenancy of Nidra Bewa was and is an occupancy holding of a non-transferable nature. Such a finding is one of 'fact and binds us; consequently the sale by Nidra Bewa to (he defendants, if a real sale, which the Subordinate Judge doubts, conveyed no rights to the defendants. It is immaterial that the ruling relied on by the Subordinate Judge has been set aside by the Full Bench decision in Dulhin Golab Koer v. Balla Kurmi (1898) I.L.R. 25 Calc. 744. The presumption referred to in Section 50 of the Bengal Tenancy Act cannot arise in this case, as the defendant's case is that the tenancy was created by a pottah dated the 4th Chait 1268.
6. The next question to be considered is whether Nidra Bewa abandoned the land. Here again we have a finding of fact by the Subordinate Judge that she has done so. It is urged by the appellant's pleader that there was no such abandonment as contemplated by Section 87 of the Bengal Tenancy Act. But it has been held in Samujan Roy v. Munshi Mahaton (1900) 4 C.W.N. 493 that the provisions of Section 87 are not exhaustive, and that a landlord is entitled to re-enter on land abandoned otherwise than under the provisions of the section. But the provisions of Section 87 have really no application to this case, for the suit is not brought against Nidra Bewa, who is no party to it. It is clear that, as found by the Subordinate Judge, Nidra Bewa has abandoned the land and has ceased to occupy or pay rent for it. There is no denial of these facts. The defendants admit them. They contend that Nidra Bewa sold the land to them. But the plaintiffs have never admitted the validity of this sale. As the Subordinate Judge says: 'The sale was admittedly not followed by kharij dakhil and recognition by the landlord'. The plaintiffs subsequently in 1898 sued Nidra Bewa for rent and obtained a decree against her. The appellant's pleader, though objecting in his grounds of appeal to the admission in evidence of the judgment in the case against Nidra Bewa, has not explained why it should not be so admitted. Then the plaintiffs have no doubt taken rent from the defendants for 17 years, but always in the name of Nidra Bewa 'through them'. Hence the defendants cannot claim to have established their title as tenants against the plaintiffs by 12 years' adverse possession.
7. The case of Madar Mondal v. Mahima Chandra Mazumdar (1906) I.L.R. 53 Calc. 531, which has been cited for the appellants, would seem to me to support the case for the respondents, as Nidra Bewa has taken no lease from the defendants, and is not now on the land, but has abandoned it without notice to the landlords and without making any arrangement for the payment of rent to them.
8. Reliance has been placed on behalf of the appellants on an order passed in the execution case relating to execution of the decree for rent obtained against Nidra Bewa. In this case, the plaintiffs sold the tenancy, and one of the defendants, Nadiyar Chand, was allowed to pay in the decretal amount and. have the sale set aside. An appeal against the order setting aside the sale was dismissed on three grounds--
(1) that the appellant Nadiyar Chand had a locus standi;
(2) that the decree-holders did not raise the objection that the jama was not saleable, and
(3) that the decree-holders had fraudulently suppressed the notices of sale and taken out execution through a muktear specially engaged and not through their regular pleader with whom the decretal amount had been deposited.
9. I do not see why so much stress has been laid upon this proceeding of the Court. The fraudulent conduct of the decree-holders in connection with this sale does not affect their right in this case. Seeing that they applied for the sale of the holding, they could not contend that it was not saleable. But this does not show that it was saleable at the instance of any one but themselves and without their consent. And because the defendant Nadiyar Chand as an alleged transferee of the holding was held to have a locus standi and allowed to pay in the decretal amount and set the sale aside, does not make any question arising in this case res judicata or bind the plaintiffs to recognise him in this case as their tenant. Applicants are allowed to have a locus standi and to pay in the decretal amount so as to set aside sales on very slender grounds : Kunja Behari Mandal v. Sambhu Chandra Roy (1903) 8 C.W.N. 232; Azgar Ali v. Asdboddin Kazi (1904) 9 C.W.N. 134.
10. The last plea of the appellants is that the defendants are the next reversioners of the estate of Nidra Bewa and that consequently, as Nidra Bewa abandoned the land in their favour, the landlords are bound to recognise them as their tenants. Nidra Bewa is still alive. She is not said, far less shown, to have abandoned her whole estate to the defendants. But be this as it may, no such plea was set up by the defendants in their written statements. No issue was framed with regard to this question. The plaintiffs had therefore* no opportunity given them of producing evidence to show that the defendants were not the only reversioners of Nidra Bewa's estate and* that there was a custom or usage prohibiting them from inheriting (see Section 26, Bengal Tenancy Act). There are only incidental observations in the Munsif's judgment, made in connection with the question of the probability of the sale by Nidia Bewa to the defendants, that the defendants were Nidra Bewas next reversioners, but these were appealed against by the plaintiffs. The Subordinate Judge has not in his judgment alluded to the point, probably because the fact that the defendants were the next reversioners was not the defendants' case either before him or throughout the proceedings. Their case was and is that they purchased the land, which was a kaimi tenure, from Nidra Bewa, and as such, not as her reversioners, are in occupation of the land and so entitled to resist the plaintiffs' suit for ejectment.
11. No plea of adverse possession as other than tenants was set up by the defendants appellants before us nor apparently before either of the lower Courts. The Subordinate Judge does not allude to any such plea. The Munsif says: 'The defendants plead tenancy under the plaintiffs......When there is clear proof of tenancy under the plaintiffs, the defendants can ill plead limitation.' If such a plea ever was raised, it is disproved by the payment of rent by the defendants for the holding, though always in the name of Nidra Bewa.
12. For these reasons I would affirm the decree of the Lower Appellate Court and dismiss the appeal, but as my learned brother Geidt does not agree with me, the case must be submitted to the Hon'ble Chief Justice for reference to a third Judge.
13. The subject-matter of this litigation is a holding, which formerly belonged to Narayan Mandal. On his death, which must have taken place more than 20 years ago, the holding passed into the possession of his widow Nidm Bewa. The plaintiffs are the landlords of the holding, and they bring this suit on the allegation that in April 1900 'Nidra Bewa abandoned her homestead and went to live elsewhere. She has abandoned her possession and has withheld payment of rent. Hence the plaintiffs are entitled to take khas possession of the said land and jama.' The plaintiffs on going to take possession found the defendants in occupation, and as the latter re fused to surrender the holding the plaintiffs bring this suit to eject them.
14. The defence set up in the written statement so far as is material to this judgment, was that the suit was burred by limitation; that the defendants had with the knowledge of the plaintiff predecessors purchased the holding 22 years before suit and that they had since been owning and holding the same on payment of rent and enjoying the profits thereof; and that, as the holding was transferable, they had acquired a good title to the same. The Munsif dismissed the plaintiffs' suit, but the Subordinate Judge on appeal has reversed the Munsif's judgment and has decreed the suit.
15. The Lower Appellate Court has found that the holding was an occupancy holding not transferable by custom, and by that finding we are bound on second appeal. But there were several other points in dispute between the parties, and, till those are decided, the plaintiffs' claim in my opinion cannot be allowed. The defendants, as I have mentioned, pleaded that they had acquired the holding 22 years before suit with the kowledge of the plaintiff's' predecessors, and had been enjoying it ever since on payment of rent. The Munsif, finding that the defendants had acquired by their purchase a right to bold the land passed by the question of limitation as immaterial, but the Subordinate Judge, though he reversed the Munsif's finding as to the transferability of the holding, did not deal with the issue relating to limitation. It was necessary to determine (his issue before the case was decided. It is singular that this omission has not been made a ground of attack by the defendants, who are the appellants before us; but as the Court is bound to dismiss any suit instituted after the period of limitation has expired, even although limitation has not been set up as a defence, I think the case ought to be remanded for the determination of this issue. Whether the plaintiff is barred by limitation must depend on the Bat are of the possession claimed openly by the defendants and not on the circumstance whether that claim has been by him admitted or not. There are moreover two other matters in which the judgment of the Lower Appellate Court seems to me defective. The Munsif found that the defendants had acquired the holding by a registered kobala in 1881. The Subordinate Judge is of opinion that this transaction 'smells strongly of collusion'; and that the admitted facts and 'circumstances relating thereto lend support to its want of reality and bond fides,' but he does not 'think it safe to find that the transfer was wholly a collusive one. '' Now if the transaction was collusive and Nidra Bewa had not transferred her rights, there was no abandonment on her part; for her rights would be intact, and provision was made for the payment of rent to the plaintiffs, who had received it from the defendants for at least 17 years according to their own rent-receipts. The cause of action put, forward by the plaintiffs falls to the ground. It appears to me immaterial to consider whether Section 87 of the Tenancy Act is exhaustive or not. The cause of action, on which the plaintiffs base their claim, is precisely the facts which under that section warrant the landlord in reentering on the holding after notice to the Collector.
16. If, however, the transaction was genuine and Nidra had transferred her rights, other considerations came into play. The Munsif found, and from the terms in which that finding is expressed more than once in his judgment, it would appear not to have been disputed, that the defendants were the next reversioners of Nidra Bewa's deceased husband. It is now settled law, and authority, for the proposition may be found in Nofer Doss Roy v. Modhu Soondari Burmonia (1880) I.L.R. 5 Calc. 732, that the surrender of her estate by a Hindu widow to persons, who at that time are unquestionably the heirs by Hindu Law of the person, from whom she had inherited it, vests in those persons the inheritance, which they would take, if she at that time were to die. An occupancy holding is heritable; and, if. the Munsif's finding is correct, the defendants under Section 26 of the Bengal Tenancy Act became entitled to the property as Soon as the surrender was made. It is true that of the two facts necessary to support such a conclusion, only one was mentioned in the written statement, viz., the transfer by Nidra Bewa, no indication being given that the defendants were Narayan Manual's reversionary heirs. I find however that, when the plaintiffs appealed from the Munsif's decision, they took no exception to the circumstance' that the Munsif had come to a finding, which was not warranted by the issues, nor did they allege that they had been taken by surprise through the admission of evidence on this matter. They contented themselves merely with stating that the Munsif was wrong in his finding that the defendants were the reversionary heirs of that person; and if we may judge from the silence of the Subordinate Judge on this point, the plaintiffs do not appear to have pressed at the hearing even this ground of appeal.
17. The defendants allege that they have to the knowledge of the plaintiffs been in possession of the holding for more than 22 years, and that they have held the land without opposition. In the circumstances I think it would be wholly unjust to permit them to be ejected without a trial of the points, which I have mentioned, merely because of a defect in the pleadings by which, as far as I can judge, the plaintiffs have not been prejudiced. I would therefore remand the case to the Lower Appellate Court for a decision on these three points:
(1) Are the plaintiff a barred by limitation?
(2) Has there been an abandonment of the holding by Nidra Bewa?
(3) If there has been an abandonment, were the defendants at the time of their purchase the reversionary heirs of Narayan Mandal so as to accelerate the inheritance?
18. On the last point, I would allow the parties, if they desire it, to adduce further evidence.
19. On account of the difference of opinion the appeal was referred to and was heard by Ghose C. J.
20. This is a reference under Section 575 of the Code of Civil Procedure in consequence of a difference of opinion between two learned Judges of this Court--Mr. Justice Rampini and Mr. Justice Greidt.
21. The facts of this case, so far as they are necessary to be referred to, are shortly these: A raiyati holding belonged to one Narain Mandal. Upon his death, it came to his widow Nidra Bewa. In November 1881, she executed a conveyance in respect of this holding in favour of Nadiar Chand and Rai Charan. Notwithstanding this conveyance, Nidra Bewa, as found by the Lower Appellate Court, continued to reside upon the property and carry on the cultivation of the land, while living in the same mess with Nadiar Chand and Rai Charan. The rent of the holding was paid to the landlord by the assignees, but in the name of Nidra Bewa, her name being entered in the receipts given for such payment. In the year 1898, a suit for rent was brought by the landlord against Nidra Bewa, That suit was decreed, but before execution was taken out of this decree, the amount decreed was paid up by the defendants to this suit, they being Rai Charan and the representatives of Nadiar Chand. Notwithstanding this payment, the landlord, the decree-holder, caused the property to he sold; but this sale was afterwards found to he fraudulent, and it was accordingly set aside upon the ground of fraud in July 1901. In Baisak 1307 corresponding to April 1900, as alleged by the plaintiff in this case, and found by the Court of Appeal below, Nidra Bewa left the place and went to reside at her father's house, and, subsequently, that is to say, in June 1903, the present suit was brought by the landlord to eject the defendants upon the ground that Nidra Bewa abandoned possession in Baisak 1307, and withheld payment of rent, and, therefore, he was entitled to obtain ejectment, the defendants being but trespassers.
22. One of the questions that were raised between the parties was, whether the suit was barred by limitation. Another issue was whether the defendants purchased the holding in question for adequate consideration; and there was also an issue, whether the holding was transferable by custom or local usage. These issues were apparently found by the Lower Appellate Court in favour of the plaintiff, and a decree given to the plaintiff for ejectment, reversing the judgment of the Court of first instance. On appeal by the defendants, Mr. Justice Rampini is of opinion that the appeal should be dismissed upon the conclusions of fact come to by the Lower Appellate Court, one of those conclusions being that Nidra Bewa abandoned the holding, and that the transfer to the defendants being not authorized either by custom or local usage, the plaintiff was entitled to ejectment. Mr. Justice Geidt, however, is of opinion that the case ought to be remanded for trial of the following questions:
(1) Are the plaintiffs barred by limitation?
(2) Has there been an abandonment of the holding by Nidra Bewa; and
(3) if there has been any abandonment, were the defendants at the time of their purchase the reversionary heirs of Narain Mandal so as to accelerate the inheritance?
23. Now, so far as the first-mentioned question is concerned, I do not see how there can be any limitation in this case. If Nidra Bewa, as found by the Lower Appellate Court, continued to reside upon the lard and cultivate the same, while living in the same mess with the defendants, and upon payment of rent to the landlord, the cause of action to the landlord could only arise, when she abandoned the property, so as to constitute the possession of the defendants as that of trespassers. This event did not occur until the year 1307 or 1900, and the suit having been brought within 12 years from that time is clearly not barred.
24. Then as regards the question, whether the defendants at the time of the purchase were the reversionary heirs of Narain Mandal so as to accelerate the inheritance, I find that, though it may be that the defendants are the sons of Nidra Bewa's husband's brother, yet they did not take the position of reversionary heirs of Narain Mandal in their written statement in the Court of first instance, and no issue was raised, whether they were the reversionary heirs. The conveyance to them was not with a view to accelerate the inheritance in their favour, but it was to them as persons, who were willing to purchase the property upon payment of a proper consideration; and it seems to me that, if no such issue as has been indicated by Mr. Justice Geidt was raised in the Court of first instance, and no evidence was necessarily given by the parties upon that question, viz. whether, by reason of the conveyance in their favour, the inheritance was accelerated so as to vest in them the title to the property absolutely, I do not think that the case should be remanded for the purpose of a finding being arrived at upon that matter.
25. But, then, as regards the other issue upon which Mr. Justice Geidt would remand the case, namely, whether there has been an abandonment of the holding by Nidra Bewa, I am of opinion that the findings that have been come to by the Lower Appellate Court are not such as would entitle the plaintiffs to say that there has been a real abandonment by that person of the holding in question so that he, the landlord, is entitled to come in and eject the defendants, treating them as trespassers. The Lower Appellate Court, so far as the question of transfer is concerned, says as follows: 'This transaction is admittedly between near relatives and thus smells strongly of collusion. The admitted facts and circumstances relating thereto lend support to its want of reality and bond fides. But as it appears that the defendants are claiming the lands under a purchase from Nidra Bewa for some years and that Nidra Bewa's defence in the previous rent suit lends support to it, I do not think it safe to find that the transfer was wholly a collusive one.' Having made these observations, the Subordinate Judge goes on to discuss the question, whether the transfer was authorized either by custom or local usage and, finding that such transfer was not so authorized, he makes the following observations: 'The transfer of the occupancy jote therefore is not a valid and an operative one. It is proved that Nidra Bewa has abandoned the holdings and as the defendants have got no valid title to retain possession as against the admitted landlords, I cannot but award their possession to the plaintiffs.'
26. Now, it seems to me that, if the transfer was not meant to be an operative transaction, but only a paper transaction, the title to the property would remain with Nidra Bewa, and the mere fact that she went away from the place to reside with her father would not be sufficient to show that she meant to abandon her interest in this holding. In this connection, I desire to refer to the observations of this Court in the case of Kabil Sardar v. Chunder Nath Nag Chowdhry (1892) I.L.R. 20 Calc. 590, where the question was raised whether the sale by a raiyat of the whole or part of a holding is not a ground of forfeiture, so as to entitle the landlord to re-enter. The learned Judges, who decided that case, observed as follows: 'The reason why the zemindar is entitled to obtain khas possession of the land of a holding, which has been sold, and of which possession has been given to the purchaser, is fully explained in the judgment of the Full Bench in the case of Nurendro Narain Roy v. Ishan Chunder Sen (1874) 22 W.R. 22 and is that the sale and transfer of possession to the purchaser conveys no title to him; and as the raiyat has left the holding and disclaims any interest in it, he must be held to have abandoned it, and the land remains a piece of land within the zemindary, to which the person in possession has no title, and which has been abandoned by the owner. It is. evident that it is essential to such a case that the owner of the land, i.e., the raiyat, must have abandoned it altogether as, if he has not, he is the person entitled to possession of it and it is of course not sufficient to enable him to succeed for the zemindar to prove that the person, who is cultivating land, has no title to it he must show that the raiyat's interest has ceased or that he is entitled to eject the raiyat for one of the reasons mentioned in the Bengal Tenancy Act.' The true question, therefore, is whether there has been an absolute abandonment of the holding by Nidra Bewa, such as would entitle the landlord to treat the defendants as trespassers. The solution of this question would depend, in a great measure, upon the nature of the transaction effected in favour of the defendants; for, if the transaction in question was not meant to be an operative one, the title in the property still continues with Nidra Bewa, and the present possession of the defendants may well be taken to be a possession on behalf of Nidra Bewa The learned vakil for the respondents, however, has contended that the Subordinate Judge meant to accept the conveyance by Nidra Bewa as a good and effective conveyance; for otherwise he would not have gone into the question of transferability. But I am unable to adopt this view as correct. The words used in the judgment of the Subordinate Judge are such as to leave it at least doubtful whether he meant to find this to be an operative transaction. He seems to have been of opinion that it was not, though he qualifies his language in rather guarded terms. I have already said that the solution of the question whether there was a complete abandonment by Nidra Bewa of this holding, such as would entitle the landlord to re-enter and treat the defendants as trespassers, would depend materially upon the decision of the question as to the true character of the transfer effected by her in favour of the defendants. If it was meant to be an operative transaction, then it is obvious that the abandonment referred to was such an abandonment as would entitle the landlord to re-enter; but if otherwise, I should think that it may well be held that the possession of the defendants was on behalf of Nidra Bewa. In this view of the matter, I am of opinion that the case should be sent back for the determination of the question whether the conveyance by Nidra Bewa in favour of the defendants was meant to be an operative transaction and. secondly, whether there was a complete abandonment by Nidra Bewa of the holding in question, such that the landlord is entitled to treat the defendants as trespassers and eject them. Costs will abide the result.