1. The defendant No. 2 was a ryot with a non-transferable right of occupancy in certain lands in the putti of the plaintiff : he sold a portion of his holding to defendant No. 1 in 1309 but defendant No. 1 did not pay rent for the part purchased by him and defendant No. 2 in 1313 executed in favour of the plaintiff a registered istifa by which he surrendered the sold portion to the plaintiff who in his turn absolved defendant No. 2 from future and past liability for the same. After obtaining this surrender, the plaintiff brought this suit for ejectment of defendant No. 1. Both the lower Courts have dismissed the suit, holding that part surrender was bad and the encumbrance created by the sale could not be got rid of in this way.
2. The plaintiff appeals and on his behalf it is contended that the sale of a part of a holding is not an encumbrance within Section 161 of the Bengal Tenancy Act and that under Section 86 of the Act, part surrender is quite valid.
3. It has been held in the case of Tamizuddin v. Khoda Newaz 14 C.W.N. 229 : 5 Ind. Cas. 116 : 11 C.L.J. 16, that the sale of a part of an occupancy holding is not an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act and I am bound by that judgment. The defendant No. 1 was, therefore, not an encumbrancer and is not protected by Clause 6 of Section 86. That being so, there is no bar to a part surrender by arrangement with the landlord as provided by Clause 7 of Section 86. As the transfer of a part of an occupancy holding is invalid, [see Agarjan Bibi v. Panaulla 14 C.W.N. 779 : 6 Ind. Cas. 452], and does not pass any title apart from the question of estoppel which has no bearing in this cast, the landlord is entitled to khas possession and the appeal must be decreed. It is true that defendant No. 2 should not be allowed to cheat his vendee in this way but the vendee is not without a remedy. The appellant will be entitled to costs against defendant No. 2 in all Courts. No costs against defendant No. 1.