1. This appeal arises in a suit for a declaration of title to certain land and for joint khas possession therein. The defendants are the appellants. The plaintiffs' case briefly is as follows : There is non-transferable occupancy holding which was held by one Sheikh Kalu under the plaintiffs and the defendants. The plaintiffs had a nine annas share in the superior interest and the defendants a seven annas share. In a sale in execution of a money decree the defendants purchased the interest of Kalu's heirs in the holding. This was before the new Bengal Tenancy Act came into operation. Thereafter the heirs of Kalu abandoned the holding and the defendants went into occupation thereof. The plain, tiffs claim that they are entitled to compensation from the defendants to the extent of their share in the superior interest for the years 1340-1342 B.S. and to joint possession of the land also to the extent of their nine annas share. The defence taken was that the holding was purchased in execution of a rent decree and not a money decree and that the defendants were recognized as tenants. It was contended that, this being so, the holding had passed to the defendants and the plaintiffs could not get joint possession thereof or compensation. An alternative defence was that the holding had not been abandoned by the heirs of Kalu Sheikh who were still on the land and that therefore the plaintiffs could not get joint possession or compensation.
2. The learned Munsif held that the sale in which the defendants purchased the holding was a money sale and not a rent sale and that there has been no recognition of the defendants as tenants by the plaintiffs. On the question of abandonment the finding of the learned Munsif is that the heirs of Kalu had not abandoned the holding. He says that the heirs of Kalu would have a very good defence to any suit for ejecting them but he adds that as they are not parties to the present suit, there is nothing to prevent the plaintiffs getting a decree for joint khas possession with the defendants. He then declared the plaintiffs' title to a nine annas share in the superior interest and gave them khas possession jointly with the defendants of the land of the holding. He also awarded them compensation at the rate of Rs. 8 per annum for two years only, i.e. for the years 1341 and 1342 B.S. The defendants appealed. The learned District Judge agreed with the trial Court in its findings that the sale was a money sale and that there had been no recognition by the plaintiffs of the defendants as their tenants. After arriving at this finding he says 'they (defendants) cannot therefore retain possession of the nine annas share of the plaintiff.' As regards the question of abandonment the learned Judge held that as there was no denial in the written statement of the plaintiffs' allegation of abandonment the defendants could not be heard to say that the heirs of Kalu had not abandoned the holding. He then says:
The trial Court found against the defendant on the question of abandonment. I agree with its finding. As a result I hold that the appeal must fail.
3. There was a cross-objection by the plaintiffs, wherein the plaintiffs objected to the remarks of the trial Court that the heirs of Kaloo could not be ejected. The learned District Judge held that these observations of the trial Court were unnecessary for the decision of the suit. The defendants now appeal to this Court. Learned advocate on their behalf accepts the position that the purchase of the defendants was at a money sale and that the plaintiffs have not recognized them as tenants. He contends however that the plaintiffs' suit must fail, inasmuch as one of the tenants whose interests were sold has not abandoned the holding and is still on the land cultivating a portion of it as a tenant under the defendants. He points out that the learned District Judge was in error in holding that the defendants could not contest the plain, tiffs' case of abandonment because they had not denied this allegation in their written statement and that he was also in error in holding that the learned Munsif had found against the defendants on the question of abandonment.
4. In my opinion the learned advocate for the appellants is perfectly correct in stating that the District Judge has erred on these two points. The defendants certainly denied in para. 9 of their written statement the plaintiffs' allegation of abandonment. Their ease was that Kushai, an heir of Kalu, was still cultivating some of the land of the holding as their tenant. Again it is wrong to say that the Munsif held against the defendants on the question of abandonment. In several places in his judgment the learned Munsif has stated that thera-has been no abandonment of the holding, and that the tenants could not be ejected as they had not abandoned the holding. In spite of the finding in favour of the defendants on the question of abandonment he gave the plaintiffs a decree for joint khas possession for reasons which I have not been able to follow. He seems to be of opinion that abandonment or no abandonment, if a cosharer landlord purchases the interests of the tenant of a holding at a money sale the other cosharers are entitled to-enter on the land and enjoy it jointly with the purchaser to the extent of their respective shares in the superior interest. The learned District Judge seems to have accepted this view. Learned advocate for the respondents plaintiffs supports this view by reference to the cases in Midnapur Zemindary Co. Ltd. v. Naresh Narayan Roy (1924) 11 A.I.R. P.C. 144 and Golbar Bibi v. Aswini kumar Singh : AIR1929Cal253 . The appellants contend that if there has been no abandonment by the tenants, the cosharer landlords have no right to khas possession with the transferee and they rely on the case in Ramesh Chandra v. Daiba Charan 0065/1924 : AIR1924Cal900 .
5. The question which has to be decided therefore is this. Assuming that there has been no abandonment of the holding, would the plaintiffs be entitled to get joint khas possession with the defendants and compensation? After considering the authorities placed before me and the principles laid down by the Pull Bench in Dayamoyi v. Ananda Mohan Roy (1915) 2 A.I.R. Cal. 242 I am of opinion that the plaintiffs' case should fail if there has been no abandonment. I shall first consider the case as if the defendants were not cosharera but strangers. They have purchased the tenant's rights in this non-transferable holding at a money sale in execution of a decree. Some of the tenants are still holding on to a portion of the land and cultivating it. Could the landlords re-enter on the land? In Dayamoyi v. Ananda Mohan Roy (1915) 2 A.I.R. Cal. 242, the Pull Bench has laid down that when the entire holding has been transferred, the landlord in the absence of his consent is ordinarily entitled to enter on the holding, but when the transfer is of a part only of the holding he is not entitled to recover possession unless there has been an abandonment within the meaning of Section 87, Ben. Ten. Act, on a relinquishment of the holding or a repudiation of the tenancy. The use of the word 'ordinarily' by the Full Bench indicates that the landlord will not in every case of a sale of the entire holding be entitled to re-enter. Ordinarily he will be entitled to re-enter but in certain circumstances he would not. When the sale is not voluntary but has been forced upon the tenants and when after the sale some of the tenants still remain on the land as tenants can it be said that the case is taken out of the ordinary class of cases in which the landlord is entitled to re-enter? It has been held that such a case is not one which comes within the meaning of the word 'ordinarily' as used by the Pull Bench in Dayamoyi v. Ananda Mohan Roy (1915) 2 A.I.R. Cal. 242 and that the landlord would not be entitled to re-enter : see Ramesh Chandra v. Daiba Charan 0065/1924 : AIR1924Cal900 . I can do no better than quote the language of Rankin J. who was one of the Judges who decided the above case. In discussing the proposition laid down by the Full Bench this is what he says:
In para. 2 in the reported judgment of Dayamayi's case Midnapur Zemindary Co. Ltd. v. Naresh Narayan Roy (1924) 11 A.I.R. P.C. 144, to be found at page 223, the proposition laid down by the Pull 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, 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 casa as this is not an ordinary case for the purpose of the proposition. In the second part of proposition it would appear that the ultimate test is abandonment (under Section 87), relinquishment or repudiation of the tenancy. But it does seem to me 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, Bengal Tenancy Act.
6. Then he goes on to say:
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 to me that the tenants have done as much as they reasonably could in these circumstances to escape conduct amounting to abandonment or amounting to repudiation.
7. Thus the landlord would have no right in such a case to eject the tenants. That being so, he can have no right to eject the transferee of the tenant. As was said by Rankin J. in the above mentioned case-unless the landlord has a right to present possession, he cannot possibly maintain ejectment against anybody whether he be> the tenants' transferee, the tenants invitee-or licensee or the tenant's uncle, cousin or aunt. It is quite impossible that, on any principle of law, the landlord, who has as 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 the' third person has no title in himself. Until the tenancy is extinguished the landlord cannot re-enter. In the present case I am assuming that there has been no abandonment by the tenants. The tenancy subsists, in spite of the sale to the defendants. The landlord could not therefore get joint khas possession of any portion of the land of the tenancy with the transferee. This would be the position if the defendants were strangers; would the fact that the defendants are cosharer landlords make any difference, so far as the right claimed by the plaintiff is concerned? I am of opinion that, it would not. Learned advocate for the respondent relies on a passage in the judgment of the Judicial Committee of the Privy Council in the case of Midnapur Zemindary Co. Ltd. v. Naresh Narayan Roy (1924) 11 A.I.R. P.C. 144 which occurs at p. 636 of the report. The passage is as follows:
Their Lordships are not certain that the Midnapore Company has in recent years, if at all, been cultivating any part of the lands in question. If the Midnapore Company has been, in fact, cultivating any of these lands, it cannot by such separate use of the lands have acquired any jote rights in them. Even if the Midnapore Company purchased any jote rights in lands held in common by the cosharers, such a purchase would in law be held to have been a purchase for the benefit of all the cosharers, and the jote rights so purchased would by the purchase be extinguished.
8. This passage merely lays down the law as contained in Section 22, Clauses (2) and (3), Bengal Tenancy Act. This is how the passage has been explained by Suhrawardy J. in Golbar Bibi v. Aswini Kumar Singh : AIR1929Cal253 . Now Section 22 (2), Bengal Tenancy Act, does not apply to non-transferable occupancy holdings and the dicta of the Judicial Committee regarding transferable holdings can have no application to the present case where the holding is non-transferable and when it is assumed that there has been no abandonment. Next the learned advocate for the respondent relies on the above mentioned case in Golbar Bibi v. Aswini Kumar Singh : AIR1929Cal253 for the proposition that when a cosharer landlord purchases a non-transferable holding the other co-sharers are entitled to joint possession with the purchaser whether there has been an abandonment or not. No such broad proposition has been laid down. There are certain dicta in the judgment which taken out of their context might lend support to this view. The question of the effect of there being no abandonment of the holding by the tenants was not considered in this case, inasmuch as the question was never raised. All that their Lordships laid down in that case was that when a non-transferable occupancy holding had been sold to a cosharer landlord, another cosharer landlord could not object to the entire sale but could only object to the sale to the extent of his share in the superior interests. The question whether a cosharer landlord could object to the sale if there had been no abandonment of the holding was never raised or discussed. The case proceeded on the ground that the tenants retained no interest in the holding after the sale. These two cases therefore do not help the plaintiffs. The law as laid down in Ramesh Chandra v. Daiba Charan 0065/1924 : AIR1924Cal900 would in my opinion apply whether the transferee were a cosharer landlord or a stranger. The fact that the transferee is a cosharer would make no difference to the principle involved, viz. that a landlord cannot re-enter on the land so long as the tenancy subsists. If therefore there has been no abandonment the plaintiffs' suit must fail.
9. The learned District Judge has not considered the case from this point of view. The findings that the sale was a money sale and that there has been no recognition by the plaintiffs of the defendants as their tenants must be maintained but the case must go back to the lower Appellate Court for a decision on the question whether there has been an abandonment of the tenancy. The learned Judge will decide this question on the evidence on the record. If he finds that there has been no abandonment he should dismiss the plaintiffs' suit, on the other hand if he finds that the holding has been abandoned, he should maintain the decree which has been passed. When dealing with the question of what amounts to abandonment the learned Judge should direct his attention to the principles laid down regarding this matter by Rankin and Mukherji JJ. In Ramesh Chandra v. Daiba Charan 0065/1924 : AIR1924Cal900 . The appeal is allowed, the decree of the Court below is set aside and the appeal is remanded for rehearing in the light of the observations made above. The costs of this Court will abide the result of the appeal in the Court below.