1. This appeal arises out of a suit in ejectment. The defendants Nos. 2 and 3 were the owners of a non-transferable occupancy holding under the plaintiff. They mortgaged their interest to defendant No. 1 who subsequently purchased that interest in execution of his mortgage decree. After that the defendants Nos. 2 and 3 executed a kabuliyat in favour of defendant No. 1 and remained in possession of the land. The Munaif gave the plaintiff a decree on contest against the defendant No. 1 and ex parte against the defendants Nos. 2 and 3 who did not appear in the suit. The plaintiff's title was declared and it was directed that he should recover khas possession of the same as against the defendants. On appeal the findings of fact of the first Court were upheld, but the decree was varied to the extent that the prayer for khas possession as against defendants Nos. 2 and 3 was rejected; but it was declared that the defendant No. 1 had no title to the disputed land as against the plaintiff. Against this decree the plaintiff has preferred this second appeal.
2. There is a considerable amount of law dealing with the question of the right of the landlord to re-enter the land of a non-transferable occupancy holding after its transfer by the tenant, but in no case has it been held that the mere transfer apart from any other consideration gives the landlord a right to re-enter when the tenant transferor, actually remains in occupation of the land. The latest case cited on behalf of the Appellants and that which is most favourable to his contentions is that of Rajani Kant Biswas v. Ekkari Das (1907) 34 Cal. 689. But in that case it was found that the tenant had not only transferred his holding but had also repudiated the existence of the relationship of landlord and tenant between himself and the original landlord. Here there is no such finding, and what is more, there is no such allegation in the plaint. In the plaint, as against the original tenants, the plaintiff's case rests solely on the allegation of transfer and the execution of kabuliyat in favour of the transferee. It is now suggested that we ought on a consideration of the facts to hold that there has been an abandonment, because it has been found by the Munsif that the defendants Nos. 2 and 3 have not expressed their willingness to pay rent to the superior landlord. But a mere omission to pay rent is not a denial of the landlord's title; and there is neither the allegation nor a finding that these tenants ever refused to pay rent to the plaintiff. The latest authority on the point is the case of Separjan Bibi v. Riamdeb Rai (1919) 24 C.W.N. 117 and that supports the view we take that on the facts alleged in the present case the landlord is not entitled to recover possession. It is argued that as defendants Nos. 2 and 3 did not appear before the lower Appellate Court the decree should not have been modified in their favour. Even if a case is heard ex parte, it is the duty of the Court to consider the interest of the absent party and not to pass a decree except on proof by the plaintiff that he is entitled to that decree. Here the plaintiff possibly by oversight omitted not only to prove that, but even to allege the facts necessary to support the decree which he obtained in the Court of the Munsif. We therefore affirm the decree of the lower Appellate Court and dismiss this appeal with costs, one-half to defendant No. 1 and one-half to defendants Nos. 2 and 3.