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Golam Mustapha Vs. Hanumandas Mundra - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Reported inAIR1935Cal80,155Ind.Cas.321
AppellantGolam Mustapha
RespondentHanumandas Mundra
Cases ReferredSee Pran Krishna Saha v. Mukta Sundari Dassya
Excerpt:
- .....refrained from using the word 'abandonment' and used the word 'relinquishment'. in that case, the holding in question contained some undivided parcels of land and therefore could not be considered as a holding as contemplated by the bengal tenancy act before the amendment of 1928. consequently the question was whether the landlord is entitled to re-enter when the whole of this tenancy was transferred, though it was not a holding within the meaning of section 87, ben. ten. act. the learned judges held that the landlord was entitled to re-enter. it was observed in that case that section 87, ben. ten. act, was not exhaustive and that there might be abandonment apart from the provisions of that section. the decision was based on two grounds, namely, (1) that the right of the landlord to.....
Judgment:

Nasim Ali, J.

1. This is an appeal by the defendant in a suit for recovery of possession of an occupancy holding on the allegation that it has been abandoned by the recorded tenant. The case for the plaintiff as alleged in the plaint is that defendant 3 was the original occupancy raiyat in respect of the land in suit, that defendants 1 and 2 are now in possession of this entire holding on the basis of purchase, and that defendant 3 is not in possession of any portion of the holding. It is on these allegations that the plaintiff wanted khas possession of the land. Defendant 1, who contested the suit, resisted the plaintiff's claim on the ground that the original tenant, that is defendant 3, was still in possession of a portion of the land, that there was not a transfer of the entire holding, inasmuch as the purchase of defendant 2 was only a benami purchase and was for the benefit of defendant 3. Defendant 2 and 3 did not appear and contest the plaintiff's claim. The trial Court held that defendant 3 was in possession of a portion of the holding and that defendant 3 never repudiated his liability to pay rent. The trial Court was further of opinion that the sale, at which defendant 2 purchased, was a collusive affair. In this view of the matter, the trial Court dismissed the plaintiff's claim for khas possession. On appeal, the lower appellate Court has held that the entire holding has been transferred and that defendant 3 is not in possession of any portion of the holding. On these findings the lower appellate Court came to the conclusion that the entire holding had been abandoned by the original tenant. In the result, the lower appellate Court has decreed the plaintiff's suit. Hence the present appeal by defendant 1.

2. The first contention of Mr. Mukerji, appearing on behalf of the appellant, is that the finding of the lower appellate Court about defendant 3's possession is not a proper finding, inasmuch as, reversing the finding of the trial Court, the learned Judge has overlooked the principle, that when the question arises as to whether one witness should be believed rather than another and that question turns on the demeanour of witnesses in the witness-box, it requires circumstances of exceptional character to justify a Court of appeal in coming to a different conclusion. It is urged by the learned advocate that the trial Court, in view of the demeanour of the plaintiff's gomasta in the witness box, disbelieved him and believed the evidence of defendant 1, as the latter appeared to him to have deposed in a very straight-forward manner. It is contended that the lower appellate Court however in believing the plaintiff's gomasta and in disbelieving defendant 1 has not at all taken into consideration the impression, which these witnesses made on the trial Court by their demeanour in the witness-box. There can be no doubt that, when a Court has got to deal with a pure question of credibility of witnesses, great weight ought necessarily to be given to the judgment of the Judge, who saw the witnesses. But there may be other circumstances and facts, quite apart from manner and demeanour, which may show whether a statement can be believed or not. These circumstances and facts may justify the appellate Court in differing from the trial Court even on a question of fact turning on the question of credibility of witnesses whom the appellate Court has not seen: see Coghlan v. Cumberland (1898) 1 Ch 704. It appears that the lower appellate Court disbelieved the evidence of defendant 1 about the residence of defendant 3 on a portion of the holding, mainly relying upon the record-of-rights, which shows that there is no homestead land in the holding. The lower appellate Court also relied upon another circumstance, namely, that, in the written statement, the story about the residence of defendant 3 on a portion of the holding was not specifically mentioned. There is therefore no substance in this contention.

3. It is next urged by the learned advocate in support of the appeal that the facts found by the lower appellate Court do not amount to abandonment and consequently the plaintiff is not entitled to khas possession. It may be pointed out, at the outset, that there is no finding in this case that there has been repudiation by defendant 3. It has not found also that there has been any abandonment within the meaning of Section 87, Ben. Ten. Act. The lower appellate Court has decreed the suit only on the ground that the holding has been abandoned by the original raiyat. Now the question is whether this finding can be challenged in Second Appeal. There can be no doubt that the question, as to whether there has been abandonment of the land by the raiyat, is largely and principally a question of fact depending upon a number of circumstances to be proved in each case: see Monohar Pal v. Ananta Moyee Dassee (1913) 20 IC 198 and Moharamdi v. Asmat 1926 Cal 751. It is no doubt true that Mitter, J., observed in the case of Aminaddin Sheikh v. Chandranath Sen 1929 Cal 120 that the question of abandonment is a question of fact and that the finding about abandonment is binding in Second Appeal. But, in the case of Aswini Kumar v. Har Kumar 1928 Cal 891, a Division Bench of this Court has observed that the inference from the facts found, as to whether there was abandonment or not, is a question of law. In view of the decision of this Court, I am not prepared to dismiss this appeal on the ground that it is concluded by finding of fact.

4. The next question for determination then is whether the facts found by the lower appellate Court amount to an abandonment in law. In the case of Dayamayi v. Ananda Mohan Roy 1915 Cal 242, the propositions laid down by the Full Bench are 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, Ben. Ten. Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.

5. It has been found that, in this case, there has been a transfer of the entire holding. Consequently, the landlord is ordinarily entitled to enter on the land. Mr. Mukerji, on the authority of the decision in the case of Romesh Chandra Mitra v. Daiba Charan Das 1924 Cal 900 however contends that the use of the word 'ordinarily' in the proposition laid down by the Full Bench indicates 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.

6. His further contention is that this ultimate test must be the same in both the branches of the proposition. It is clear from the second part of the proposition that the ultimate test is (a) an abandonment within the meaning of Section 87, Ben. Ten. Act, (b) a relinquishment of the holding, or (c) a repudiation of the tenancy. But the question as to whether that is also the ultimate test in the first branch of the proposition is not free from difficulty. The first branch of the proposition laid down by the Full Bench does not expressly state what the ultimate test is. Prior to Dayamayi v. Ananda Mohan Roy 1915 Cal 242, it was settled, on good authority, that Section 87, Ben. Ten. Act, did not prescribe the only mode in which the holding could be abandoned. It is not very clear whether the decision in Dayamayi v. Ananda Mohan Roy 1915 Cal 242 affects these decisions prior to the decision of that case. In the absence of any clear indication in the judgment of the Full Bench, I am not prepared to say that the view, which was taken by this Court prior to this decision of the Full Bench, namely, that there might be abandonment apart from Section 87, Ben. Ten. Act, must be taken now as wrong. I am fortified in this view of the matter by two recent decisions of this Court, viz., Baikuntha Chandra Nag v. Chandra Nath Bondopadhya 1930 Cal 190 and Abdul Majid Bhuiya v. Ali Mia 1931 Cal. 657. In the last mentioned case, Suhrawardy, J., refrained from using the word 'abandonment' and used the word 'relinquishment'. In that case, the holding in question contained some undivided parcels of land and therefore could not be considered as a holding as contemplated by the Bengal Tenancy Act before the amendment of 1928. Consequently the question was whether the landlord is entitled to re-enter when the whole of this tenancy was transferred, though it was not a holding within the meaning of Section 87, Ben. Ten. Act. The learned Judges held that the landlord was entitled to re-enter. It was observed in that case that Section 87, Ben. Ten. Act, was not exhaustive and that there might be abandonment apart from the provisions of that section. The decision was based on two grounds, namely, (1) that the right of the landlord to re-enter, when his land remained unoccupied or is in the occupation of a trespasser (the transferee of a non-transferable tenancy is a trespasser), is a right which is conferred upon the landlord under the general law, and (2) that the transfer of a non-transferable occupancy holding is the breach of an imlied condition of a tenancy, namely, that the tenant would have no right to transfer and consequently on account of this breach of the implied condition the landlord is entitled to eject. It is however open to doubt whether, in view of the express provisions laid down in Section 25, Ben. Ten. Act, the breach of an implied condition would be a ground for ejecting an occupancy raiyat. Ejectment for breach of an implied condition has always been limited to cases where there had been estoppel by record or where there had been an attempt by the tenant to assert a title paramount to the landlord either in himself or in a third person. [see Romesh Chandra Mitra v. Daiba Charan Das 1924 Cal 900]. In fact, if that was the intention of the legislature that, apart from the provisions of Section 25, Ben. Ten. Act, the landlord would have the right to eject an occupancy raiyat for breach of an implied condition, the legislature would have said so expressly.

7. As pointed out above, in view of the above decisions of the Division Bench of this Court, I am not prepared to say that the ultimate test in the first branch of the proposition laid down by the Full Bench is restricted only to an abandonment within the meaning of Section 87, Ben. Ten. Act.

8. It is no doubt arguable that, in view of the ultimate test indicated in the second branch of the proposition laid down by the Full Bench, it is no longer open to contend that the ultimate test would be different, so far as the first branch of the proposition is concerned. But, as already observed, in view of the recent decisions of this Court, I am not prepared to hold that there cannot be an abandonment apart from the provisions of Section 87, Ben. Ten. Act. What then are the facts, which must be proved to show that there had been an abandonment apart from the provision of Section 87? In the case of Ram Lal Mandar v. Kuldip Narayan Tewari 1924 Pat 440, Dawson Miller, C.J., observed as follows:

I agree that, apart from Section 87, Ben. Ten. Act, there may be an abandonment of a holding but I consider that in such a case it must be proved either that the tenant has transferred his whole interest in the property and ceased to take any further interest therein as for example by a sale of the whole property or that he has abandoned the right to retake possession in future or has either left the village without any intention of returning or done some other act which would clearly indicate that he no longer retained the spes recuperandi.

9. Again in the case of Prosonna Kumar De v. Ananda Chandra Bhattacherjee (1926) 93 IC 86, a Division Bench of this Court has made the following observation:

It is not necessary to prove as a fact that the holding has been abandoned but it is a direct inference from the fact that the entire holding was sold and possession given to the predecessor.

10. In other words, even if there be no abandonment within the meaning of Section 87, an inference of abandonment apart from the provisions of that section would be legitimate, if it is proved that the entire holding has been transferred and that the transferees have been put in possession of the whole holding. This view can be supported on the principle that, after the entire holding has been transferred and the transferee has been put into possession, it becomes the khas land of the zemindar and the zemindar is therefore entitled to re-enter. See Pran Krishna Saha v. Mukta Sundari Dassya (1913) 21 IC 544.

11. Now, from the facts found by the lower appellate Court, it is clear that the original defendant 3 is no longer in possession of any portion of the holding and that the entire holding has been transferred. In these circumstances, the lower appellate Court was right in holding that the holding had been abandoned by the original raiyat before the institution of the suit.

12. The result therefore is that the appeal is dismissed with costs.


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