1. This was a suit for declaration of title and for recovery of possession of certain lands mentioned in the plaint. I need not for the purpose of our decision specify the lands in detail, but put quite shortly the position was that there was an occupancy raiyati standing in the names of two persons, Golapdi Mallik and Abdul Sattar, at a jama of Rs. 36-3as-17gds. That was a non-transferable occupancy holding. It was mortgaged by way of conditional sale and the mortgage was a usufructuary mortgage. It is conceded that the mortgage was of the whole of the property in question. The plaintiff in the suit was the landlord Sarat Kumar Banerjee and he is the appellant before us. The respondent in this appeal, Munshi Abdul Bari, was the principal defendant in the suit and he was the mortgagee. The other defendants in the suit were the tenants who were the mortgagors.
2. It appears that the present plaintiff brought a suit against the tenants for recovery of rent. In that suit he obtained a decree and proceeded to put the decree to execution in consequence of which there was a sale of the holding and at that sale the landlord, that is to say, the present plaintiff, was the purchaser. The sale was duly confirmed and the plaintiff as the purchaser was put into possession of the property. Thereupon the present defendant as the mortgagee filed an objection under the provisions of Order 21, Rule 100, Civil P.C. There seems to have been an investigation as provided for in Rule 100, Clause 2, as a result of which the Court made an order under the provisions of Order 21, Rule 101 and directed that the applicant, that is to say, the present defendant, the mortgagee, was to be put in possession of the property. The present plaintiff thereupon instituted the suit with which we are now concerned, claiming that he had the right to eject the mortgagee and recover possession of the property. The Munsif of the second Court, Arambagh, made a decree in favour of the plaintiff and ordered that he should get khas possession of the lands in question, the defendants being evicted. Thereupon the defendants appealed and the matter came before the Subordinate Judge, Second Court, Hooghly, who reversed the decision of the trial Court on the ground that the mortgage in question was an incumbrance within the meaning of Section 161, Ben. Ten. Act, and that the plaintiff as the purchaser at the auction sale had not given proper notice to annul that incumbrance under the provisions conferred under Section 167, Ben. Ten. Act, in that the plaintiff knew of the mortgage of 12th November 1923 or at any rate when the sale was confirmed on 24th June 1924, and he had not served the notice under Section 167 until 18th August 1925 which the learned Subordinate Judge erroneously computed to be within two years after the confirmation of the sale or more than two years of the date of the knowledge of the plaintiff.
3. It is clear that the notice was served after one year, indeed one year two months after the date of the confirmation of the sale. The learned Subordinate Judge was wrong in taking the date of the service of the notice as the terminus ad quem, as Section 167 in fact says that an application in writing must be made to the Collector within one year from the date of the confirmation of the sale or the date on which the purchaser first had notice of the incumbrance, whichever is later. Therefore the proper date to be taken was the date on which the application (on which the notice was founded) was made to the Collector. However if we had to decide the case on this point alone we should probably take the view that as the notice was served on 18th August 1925 the presumption is that the application was made to the Collector within a week or two before the date on which the notice was served. In the ordinary course the Collector in matters of this kind would doubtless take the necessary steps to have a notice served within a week or two of the application made to him. However in the view which we now take of this case it is not necessary that we should further deal with this point.
4. This appeal has been argued at great length and much force by the learned advocate on behalf of the landlord, the appellant before us, that this is in fact a case where we ought to hold that the usufructuary mortgage which was created by the tenants defendants was not an incumbrance within the meaning of Section 161, Ben. Ten. Act, and therefore no notice of the kind contemplated in Section 167 as a condition precedent to the right of the landlord to resume possession as against the mortgagee was required.
5. Having regard to the facts and circumstances of this particular case we do not think it necessary to make any attempt to reconcile the many conflicting decisions upon the question whether or not the mortgage of the whole or of a part of a non-transferable occupancy holding constitutes an incumbrance within the meaning of Section 161 or whether the fact that it is a usufructuary mortgage makes any difference or the fact that a purchaser at the auction sale which was held under execution proceedings is himself a landlord. We only say with regard to this aspect of the matter that the time must come when the Court will have to make some attempt to reconcile these conflicting decisions, or at any rate to extract some general principles from them. We think however the matter can be decided upon the footing that the usufructuary mortgage, even though it was a mortgage of the whole of the holding, did not of itself constitute on the part of the tenants an abandonment of the holding so as to give the landlord by that alone, the right to resume possession on the ground that the tenants had made a transfer of a non-transferable holding and had therefore abandoned the holding. It appears that in this particular case the mortgage deed provided that the tenants mortgagors would continue to pay the rent to their landlord. The case of Prionath Bose v. Kusum Kumari Dassi (1918) 47 IC 332 seems to indicate that the mere making of a usufructuary mortgage, even a mortgage covering the whole of the holding, does not itself constitute an abandonment. There must be some further facts found in addition to the mere execution of the mortgage and other circumstances must exist in order to show conclusively that not only by the making of the mortgage but for other reasons the tenant intended to abandon the holding and no longer be responsible for, or at any rate to fulfil his obligation towards his landlord as regard the payment of rent.
6. In the present instance, as I have already mentioned, there was not only a mortgage, but the tenant defaulted in payment of rent to the landlord and the present plaintiff secured a decree for the rent which was in arrears and brought the holding to sale and himself became the purchaser. We are of opinion that although prior to the sale the tenants still had some interest in the holding in that he had not parted with the equity of redemption after the sale whatever the interest the tenant still had in the holding passed to the landlord by virtue of the purchase which he had made. Thereafter the tenant had no further interest in the holding as against his landlord. That being the position we may take it that the execution of the usufructuary mortgage plus the sale in the execution proceedings are sufficient to constitute a complete abandonment on the part of the tenant particularly when one takes into account also the facts that subsequent to the rent sale there was a proceeding by the mortgagee under Order 21, Rule 101 in consequence of which he was put in possession of the land in question.
7. In those circumstances we feel able to decide this matter on the footing that there was a complete abandonment by the tenant and therefore the plaintiff in the suit had the right to resume possession qua landlord irrespective of the fact that he himself happened to be the auction-purchaser as by the sale the scintilla of interest which remained in the tenants was finally extinguished. The plaintiff by virtue of his position as the landlord of a holding which has been totally abandoned by the tenant has a right to resume possession and we think that he is entitled to resume possession as against the mortgagee. We therefore come to the conclusion that this appeal must be allowed. The judgment and decree of the lower appellate Court are set aside and those of the Court of first instance restored. The appellant is entitled to his costs in this Court as well as in the lower appellate Court.
8. I agree with the decision of my learned brother and I would only like to say that the possession taken by plaintiff must have been actual possession not symbolical possession; otherwise there would not have been any proceeding under Order 21, Rule 100, Civil P.C. The trial Court does not appear to be correct in stating that the plaintiff took symbolical possession.