1. This appeal arises out of a suit for ejectment of the defendants from a portion of a rote under the following circumstances.
2. An occupancy holding belonged to one Jamir. The defendants NOS. 7 to 10 are the heirs of Jamir. They sold a portion of the holding to the defendants Nos. 1 and 2 on the 21st June 1907. The former (defend ants Nos. 7 to 10) then surrendered that portion of the holding which they had sold to defendants Nos. 1 and 2. This surrender was in favour of some of the landlords who bad a two-thirds share of the land lord's interest in the howla. It appears that the defendants Nos. 7 to 10 also put in a petition of surrender in respect of the share of the landlord owning a 1/3rd share in the howla but the latter did not accept the surrender. On the 19th October 1913 the plaintiffs who, are the respondents before ns, took a neemhowla lease from the landlords owning a 2/3rds share and they brought the suit for ejectment of the defendants Nos. 1 and 2 from the portion of the land which had been purchased by them.
3. The Courts below have given a decree for ejectment and the main grounds upon which they proceeded are; first, that the transfer to the defendants Nos. 1 and 2 having been made without the consent of the landlord, the latter was entitled to re-enter, and secondly, that there was a valid surrender of a portion of the occupancy holing even though the original tenant had sold that very portion to other persona.
4. So far as the first ground is concerned, it is obviously untenable because the landlord is not entitled to re enter if there is a transfer of only a portion of the holding. [Sea Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172]
5. The next and most important point is whether the surrender of a portion of a holding which has already been sold to another, is valid and binding upon the transferee of the portion, Apart from any authority, it would seem that a person who has parted with his interest in a property cannot deal with that interest by surrendering it in favour of the landlord, and that he cannot confer upon the landlord a higher right than he could have passed to any other person by assignment. It would be different in a case of surrender of the entire holding because there the tenancy would cease to exist, and the landlord would be in a position to re enter on the land.
6. The decided cases on the point, however, cannot be said to be uniform.
7. The learned Subordinate Judge has relied upon the case of Ramoni Mohan Roy v. Sheikh Kalimuddi 17 Ind. Cas. 682 : 17 C.W.N. 1101. But that case to some extent proceeded upon the view (which is no longer tenable) that the interest of the raiyat ceased on a transfer of a portion of the holding. There is another case, Tamiz Munshi v. Bisweswari Debya (Brojendra Kishore Roy) 46 Ind. Cas. 862 : 22 C.W.N. 967 upon which a good deal of relianoe has been placed before us on behalf of the respondents. But in that case the decision of the Appeal Bench under the Letters Patent proceeded on the ground that there was in fact a surrender of the entire holding, a point upon which there was a difference of opinion between D. Chatterjee and Newbould, JJ. In another case in the same volume Refers to 22 C.W.N.--Ed. Ananda Mohan Roy v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965, it was held by D. Chatterjee, J., that a raiyat who has sold a portion of his non-transferable occupancy holding, has parted with all his rights in the portion in favour of the purchaser, has no interest in it to surrender, that the surrender may be looked upon as a transfer or grant and whatever binds the raiyat binds the landlord in whose favour he surrenders; and that the landlord cannot on accepting a surrender of the pari of the holding sold by the raiyat sue to evict the transferee. On appeal under the Letters Patent, Woodroffe and Mookerjee, JJ., upheld that decision.
8. Then again in the case of Dastar Ali v. Ram Kumar Gope 50 Ind. Cas. 378 heard by a Bench of three Judges (Fletcher, Beachcroft and Greaves, JJ.) in consequence of a difference of opinion between Teunon and Richardson, JJ. [which is reported as Dastar Ali v. Ram Kumar Gope 50 Ind. Cas. 567 : 22 C.W.N. 972], the Court of Appeal held that a raiyat having sold a part of his non-transfer-able occupancy holding cannot surrender that part to the landlord so as to confer title upon him to eject the purchaser. The learned Judges relied upon the decision in the case of Ananda Mohan Roy v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965 and it was pointed out that the vendor, having transferred a portion of the holding, had nothing left in him in that portion to surrender to the landlord. The case of Tamiz Munshi v. Bisweswari Debya (Brojendra Kishore Roy) 46 Ind. Cas. 862 : 22 C.W.N. 967 was referred to and distinguished.
9. We agree with the view taken in the case of Dastar Ali v. Ram Kumar Gope 50 Ind. Cas. 378 and the case of Ananda Mohan Roy v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965 referred to above.
10. We may point out that Mr. Justice Woodroffe, one of the Judges who decided the case of Tamiz Munshi v. Bisweswari Debya (Brojendra Kishore Roy) 46 Ind. Cas. 862 : 22 C.W.N. 967, was a party to the decision in the case of Ananda Mohan Roy v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965.
11. It has been contended before us that Sub-section (7) of Section 86 of the Bengal Tenancy Act leaves it open to the tenant and the landlord to come to any arrangement as regards the surrender of the whole or any portion of an occupancy holding; and that, therefore, this surrender of a portion is valid. Bat all that the section says 4a that nothing in the earlier Sub-sections of that section would affect any arrangement entered into by the landlord and the tenant as regards the surrender of the whole or part, It does not lay down that the tenant may transfer a portion of the holding to a third party and then surrender that portion in favour of the landlord so as to affect the interest of such purchaser.
12. The latest decided case on the point, as we have pointed out, is in favour of the view we have taken and on principle also we think that view is supported.
13. We may also point out that in this particular case, the surrender was not even in favour of the entire body of landlords, As stated above, there was a surrender of the portion transferred in favour of the landlords representing 2/3rds share of the landlords interest, and the owner of the remaining 1/3rd share refused to accept the surrender. This case, therefore, is stronger than the other cases referred to above.
14. The plaintiffs' claim for ejectment of the defendants must, therefore, be dismissed but the plaintiffs' neemhowla right to the extent of the 2/3rds share will be declared. Each party to bear his own costs in all Courts.