1. This is an appeal on behalf of the plaintiffs and it arises out of a suit commenced by them to recover possession of the lands in suit, on establishment of their title to the same. The material facts lie within a small compass and may be narrated as follows: By certain collectorate partitions the plaintiffs have come to own the entirety, of tauzi No. 14198 of the Mymehsingh Collectorate. Under this touzi there was a non-transferable occupancy holding in possession of one Indramoni Dasya, consisting of four plots of land, to wit, C.S. Dags Nos. 686, 688, 801 and 13 acres of Dag 687. In 1927, Indramoni sold all the lands Of the holding with the exception of 434 acres of land of holding No. 686 to the present defendant. In 1928, the Bengal Tenancy Act was amended, making all occupancy holdings transferable in law, and in 1936 Indramoni transferred the residue of the holding amounting to 34 acres of land possessed by her to one Kali Prasanna. The plaintiffs as landlords, thereupon exercised their right of repurchase under Section 26F, Ben. Ten. Act, as it stood prior to the amendment of 1938 in respect to the portion of land purchased by Kali Prasanna, and they have now instituted the present suit to recover possession of the lands sold to the defendant in 1927, on the allegation that the holding was entirely abandoned after the second transfer, and the defendant as a mere trespasser had no right to retain possession of the same against the plaintiffs landlords.
2. Both the Courts below have dismissed the plaintiff's suit. They have held concurrently, that as the sale to Kali Prasanna was after 1928, when occupancy rights became transferable in law, the plaintiffs were bound to recognize Kali Prasanna as tenant, and the holding could not be said to have been abandoned. It was further held, that the plaintiffs by exercising their right of pre-emption simply stepped into the shoes of Kali Prasanna, and could not treat their own purchase as constituting art, abandonment of the holding. It is the propriety of this view that has been challenged before us in this second appeal. It may be pointed out at the outset that the identical point came up for consideration before Edgley J. sitting singly in Annada Prosad v. Ramjan Sarkar : AIR1940Cal6 and it was held by the learned Judge that as soon as the last portion of the holding was transferred, there was an abandonment of the holding within the meaning of Section 87, Ben, Ten. Act, and the landlords were entitled to enter on the land occupied by the first purchaser. In that case, as in the present, the landlords had got the lands of the second purchaser by exercise of their rights of repurchase under Section 26(F), Ben. Ten. Act, as it stood before 1938, but it was held, that even without; relying on their pre-emption of a portion of the holding, the landlords were entitled to treat the holding as abandoned. The decision undoubtedly supports the contention of the appellant. Mr. Gupta who appears on behalf of the appellant has placed reliance upon the decision itself but he has attempted to support it on grounds other than those assigned by the learned Judge.
3. The learned advocate appearing for the respondent, has on the other hand contended that the decision of Edgley J. is wrong, as it goes against several decided authorities of this Court. In these circumstances it is necessary for us to examine the matter with some care. Under the law as it stood prior to 1928, occupancy holdings were not transferable except with the consent of the landlord or by custom, and an unauthorised transfer of the entire holding by way of sale, ordinarily entitled the landlord to enter upon the lands of the holding: vide Dayamoyi v. Ananda Mohan Roy ('15) 2 A.I.R. 1915 Cal. 242. The reason why the zemindar was entitled to recover possession of the lands of a holding which was sold in its entirety by the raiyat was explained in one of the earliest Pull Bench decisions of this Court which is to be found in Narendra Narayn v. Ishan Chandra ('74) 22 W.R. 22. The reason was that the sale and transfer of possession to the purchaser conveyed no title to him, and as the raiyat had left the land he must be deemed to have abandoned it. As the land remained a part of the zemindary of the landlord, to which the per-son in possession had no title, and which was abandoned by the owner, there was nothing in law which prevented the proprietor from taking possession of it. If the raiyat transferred only a portion of the holding and remained in possession of the rest, the landlord had no right to recover possession of the transferred portion as the holding was not then abandoned, and the original tenant occupying a portion of the lands, constituted a barrier between the landlord and his own transferee. It was also well settled that the entire holding need not be transferred all at once. If the entire holding was sold out in parts at different times, it would amount to abandonment as soon as the last transfer was made. In 1928 the law was changed, and under Section 26(B), Ben. Ten. Act, as it stands after amendment, the holding of an occupancy raiyat, or a share or portion of it can be transferred like any other species of immovable property, subject to the other provisions of the Act. It is 'undisputed that the section is not retrospective and consequently a transfer of a portion of a holding effected prior to 1928 is not in any way validated by this amendment. The transferee still remains a trespasser. The question now is what would be the legal consequence if the residue of the holding in possession of the raiyat is sold to another person after 1928. The second transferee of course cannot be evicted, but Edgley J. is of opinion that the first transferee can be turned out as a trespasser, as there is an abandonment of the holding as soon as the second sale is made, even though it is made after 1928, and the first transferee would lose the protection, which he hitherto enjoyed by reason of the original tenant being in possession of a portion of the holding. Edgley J. lays stress on the wording of Section 26(B), Ben. Ten. Act, which makes the holding of an occupancy raiyat transferable subject to the other provisions of the Act. In his opinion, Section 26(B) must be read subject to the provision of Section 87 of the Act. It is pointed out by the learned Judge that so long as the original tenant was in possession of some portion of the holding the landlord might have some security for the rent of the entire tenancy, including the portion already transferred. But the second transferee, who acquired the statutory right of a tenant with regard to a portion might get the holding divided under Section 88, Ben. Ten. Act, and the landlord also might exercise his right of pre-emption under Section 26(F) of the Act.
4. In either case, the landlord would have no means of realizing rent in respect of the portion of the holding previously transferred, and as with regard to that portion at least the original tenant can be said to have made no arrangements for payment of rent, there is abandonment within the meaning of Section 87, Ben. Ten. Act.
5. In our opinion, Edgley J., has enunciated the proposition of law a little too broadly. If the second transferee is in possession of the lands purchased by him and is liable for payment of the entire rent and the lands have neither been pre-empted by the landlord under Section 26F, Ben. Ten, Act, nor separated from the rest of the holding by a division of the tenancy under Section 88 of the Act, it is difficult to say that the landlord would still have the right to enter upon the land in possession of the first transferee. The second transferee must be deemed to be a tenant under the landlord in the same way as the original raiyat was, he was still answerable for the entire rent and to allow the landlord a right of reentry with regard to the lands previously sold, in suoh circumstances, would be to hold that there could be an abandonment in respect of a portion of the holding. We think, therefore, that mere transfer of the last portion of the holding to a purchaser if it is after 1928, would not by itself constitute abandonment. The landlord, however, may have the right to recover possession of the first sold portion if, in addition to the transfer of the residue of the holding, other circumstances are present, to which reference was made by the learned Judge himself in his judgment. If the second transferee gets the tenancy sub-divided and the rent apportioned under Section 88, Ben. Ten. Act, there would be obviously a splitting up of the original holding. The portion already sold would in that case be severed from the remaining portion and as there is no arrangement made ,for payment of rent in respect of the same either by the original tenant or his successor, it might be deemed to have been abandoned, even though the other portion was actually in possession of a tenant.
6. We think that the landlord would also have the right to recover khas possession of the portion sold to the first purchaser, if he has exercised his right of pre-emption with regard to the remaining portion and taken possession of the same. In such a case, there is no tenant in possession of any portion of the land constituting the holding and there is no arrangement for payment of rent in respect of the same. As the first transferee who is alone in possession is admittedly a trespasser he can certainly be evicted and the landlord can take khas possession of the lands occupied by him. In the case decided by Edgley J., the plaintiffs landlords had also preempted the portion of the holding sold to the last transferee, and we think, therefore, that the decision of our learned brother was perfectly right though, for ourselves, we would like to base the landlord's right of entering on the land, on the ground of his having pre-empted and taken possession of the rest of the holding. It appears that Edgley J., did not attach much importance to the fact of the landlord's taking possession of the last portion of the holding by re-purchase under Section 26F, Ben. Ten. Act, inasmuch as he felt embarrassed by certain decisions of this Court, which held, that the landlord if he himself purchases a portion of the holding by private sale, or in execution of a money decree, which gives him only the right, title and interest of the judgment-debtor, is precluded from setting up his own purchase as constituting an abandonment of the holding.
7. The decided cases to which reference was made by the learned Judge are Sorojini Roy v. Ramesh Chandra : AIR1936Cal536 and Ruhini Kumar v. Amiruddin Kabiraj : AIR1932Cal405 . In both these cases, which Were decided under the old law, the occupancy raiyat had himself transferred a portion of the holding and the remaining portion was purchased by the landlord, in execution of a defective rent decree Which had the effect of a money decree. It was held by the learned Judges that on the principle enunciated by the Full Bench of this Court in Mohesenuddin v. Bhagaban Chandra ('21) 8 A.I.R. 1921 Cal. 444, the landlord who merely stepped into the shoes of the tenant by such sale, could not take advantage of his own purchase in treating the holding as abandoned and evicting the first transferee. In our 'opinion the cases mentioned above cannot have any application to the facts of the present case. In Mohesenuddin v. Bhagaban Chandra ('21) 8 A.I.R. 1921 Cal. 444, it was held that an occupancy raiyat who had transferred a part of his non-transferable holding was not competent to surrender to the landlord either the whole holding or the portion so transferred and thereby entitle the landlord to enter on the lands; as that would be to allow him to derogate from his own grant which the law does not permit. In other words, having himself transferred a portion of the holding to another for a consideration, the transferor was disentitled to exercise to the detriment of the purchaser, the power of surrender, which he undoubtedly had. We entertain doubts as to whether this principle could be extended to a case where the raiyat sold a portion of his tenancy to a purchaser, and the remaining portion was purchased by the landlord in execution of a decree against the tenant.
8. According to the Full Bench decision, the disability was upon the raiyat, who on the principle that the grantor cannot be permitted to derogate from his grant, was prevented from doing anything which might prejudice the interests of his vendee. But in the cases mentioned above, it was the landlord who put up to sale the remaining portion of the tenancy, the tenant really did nothing except that he could not or did not pay the rent and thereby gave the landlord an opportunity to pat up his lands to sale. But even if these decisions ,are right, there is no act or omission nor even a default on the part of the tenant in the present case. Kali Prasanna did neither voluntarily sell his share to the plaintiffs, nor did he do or abstain from doing anything which enabled the landlord to acquire his share by purchase. The landlords merely exercised their statutory right of repurchase, which was not founded 6h any act except the act of purchase by the tenant. It is also doubtful, whether not being the grantor & himself, the principle that one cannot derogate from his grant could at all be invoked against Kali Prasanna.
9. It may be said further, that even if before 1928, a landlord in purchasing a portion of the tenancy could be deemed to have impliedly held out and represented that the entire holding was transferable, there could be no such representation, when the lands were sold after 1928. We have therefore no hesitation in holding that the fact of the plaintiffs having pre-empted a portion of the holding does not disentitle them in any way to treat the holding as abandoned. On the other hand, having got possession in exercise of their statutory right of the lands that were in lawful occupation of their tenant, they could evict the first transferee who was nothing but a trespasser with regard to the lands possessed by him. The fact that under Section 26(F)(6), Ben. Ten. Act, the pre-empting landlord gets only the right, title and interest of the purchaser is immaterial for, as we have said above, no rule of estoppel could be invoked against the purchaser also. Our conclusion therefore is that the plaintiffs are entitled to recover possession of the lands in possession of the defendant. The appeal is thus allowed. The judgments and decrees of both the Courts below are set aside, and the plaintiffs' suit decreed with costs in all the courts.