W. Comer Petheram, C.J. and Norris, J.
1. The plaintiff is the owner of 14 annas of a zemindari in which, prior to the year 1884, a person named Delu had a right of occupancy in about 26 bighas 16 cottahs, at a rental of Rs. 30, and before that year Delu sold half of his holding to the defendants one to four, the sons of his deceased brother Kalu. In 1884 the plaintiff brought a suit against Delu for arrears of rent of the land, and in answer to that suit Delu pleaded that half the land had been sold by him to the defendants one to four, and that they were in possession of it. What the result of that action was does not appear, but we are told by the plaintiff's pleader--and I understand that the statement is not disputed by the defendant--that since that time no rent in respect of this holding has been accepted by the plaintiff from any one, but that as it has become due, the rent of the entire 26 bighas 16 cottas has been paid into the Collectorate to the credit of the plaintiff in the name of Delu or of the defendants Kafiludhi and Kasimuddi, who are his sons and now represent him, as he has died since 1884.
2. It is found that there is no local custom by which this holding is transferable.
3. The present suit was brought on the 19th of March 1889, to recover khas possession of the whole of the land by the zemindar, on the ground that the sale and transfer of the possession of half of the land comprised in the holding by Delu to his brother's children worked a forfeiture of the entire tenancy.
4. The Munsif gave the plaintiff a decree for so much of the land as was sold by Delu to the defendants one to four, but dismissed the suit as to the rest of the land. The District Judge has decreed the suit as to the whole of the land, on the ground that the sale of the moiety worked a forfeiture of the entire holding.
5. The defendants have appealed and contended that the entire suit must fail, as neither Delu nor his representatives have abandoned the holding, and that the zemindar can only obtain khas possession of the land for one of the causes mentioned in the Bengal Tenancy Act, of which parting with possession of the land is not one. In my opinion this contention must prevail.
6. The reason why the zemindar is entitled to obtain khas possession of the land of a holding which has bean 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 Narendra Narayan Roy v. Ishan Chandra Sen 13 B.L.R. 274 : 22 W.R. 22, and is that the sale and transfer of possession to the purchaser conveys no title to him, and as the ryot 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 zemindari, 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 ryot, 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 ryot's interest has ceased, or that he is entitled to eject the ryot for one of the reasons mentioned in the Bengal Tenancy Act. This was clearly decided in the case of Debiruddi v. Abdur Rahim I.L.R. 17 Cal. 196.
7. In the present case, so far from having abandoned the holding, the ryot and his sons since his death have paid the rent of the whole into the Collectorate, and they have themselves always cultivated a portion of it, and the sale or parting with possession of the whole or part of the holding is not made a ground of forfeiture by the Tenancy Act.
8. For these reasons I think that the Courts below were wrong in decreeing the suit or any portion to it, and I think that the appeal must be decreed, and the suit dismissed with costs in all the Courts.