1. The plaintiffs in the suit out of which this appeal has arisen prayed for ejectment of the defendants on a declaration of their title to the lands in suit which appertained to a tenancy, which were admittedly non-transferable holdings. The plaintiffs' claim in the suit was resisted by defendants 1 and 6 who filed separate written statements in the Court of first instance.
2. It may be mentioned that the plaintiffs' cause of action in the suit was based upon the allegation that the non transferable holdings to which the lands in suit appertained were transferred by the tenant-defendants 5 and 6 to defendant 1 by a usufructuary mortgage deed dated 1st May 1927. The suit was brought by the plaintiffs on 20th July 1928 on the ground that the original tenants, defendants 5 and 6, had abandoned the holdings. The material issue raised for determination in the suit was issue 2: 'Have the jotes in question been abandoned by defendants 5 and 6? If so can the plaintiffs get khas possession?' On this main question in controversy between the parties the Court of first instance came to a decision against the plaintiffs. According to the trial Court there was no abandonment of the holding by the tenants, defendants 5 and 6. The plaintiffs were not therefore entitled to possession and the suit was accordingly dismissed. On appeal by one of the plaintiffs the Additional Subordinate Judge, fourth Court, Sylhet, reversed the decision of the trial Court and passed a decree in favour of the plaintiffs entitling them to recover the lands in suit. On the findings of fact arrived at by the Court of appeal below, this appeal must be dismissed. The learned Subordinate Judge has definitely found as a fact that defendants 5 and 6, that is, the tenants of the holdings, had ceased completely to possess the lands appertaining to the holdings, including the homestead plot. The learned Judge in the Court of appeal below has further held that the original tenants did make no arrangement for payment of rent payable in respect of the tenancies.
3. The effect of the findings thus arrived at by the Court of appeal below was that there was complete abandonment by the tenants of the holdings, and that the plaintiffs' claim for possession could not be resisted by the defendants. It has however been argued by the learned advocate appearing for defendants 1 and 6, appellants in this Court, that the Court of appeal below should have held that under the provisions of Act 8 of 1869 applicable to the case, there was no right in the landlord to eject tenants on the ground of abandonment and that the right of the landlord was to proceed Under Section 52 of the Act to eject the tenants for non-payment of rent. It is to be mentioned in this connexion that there was no question of non-payment of rent in the case before us. The question was, as has been discussed by the Court below, whether the original tenants had ceased to possess the lands in suit appertaining to the tenancies held by the original tenants, defendants 5 and 6. The further question raised was: 'Did the original tenants cease to pay rent in respect of the land in suit?' The learned Subordinate Judge has come to a definite finding that the original tenants had given up possession of the lands in suit as appertaining to the tenancies which originally belonged to them. It has further been found that there was no arrangement made by the original tenants so far as the payment of rent in respect of the tenancies in question was concerned. Therefore it was not a case in which the landlord could seek to eject the original tenants on account of nonpayment of rent; it was a case in which the lands in suit could be treated to have been completely abandoned by the tenants, that is to say, the lands were given up by the tenants who held the tenancies in question. Further, the original tenants had not made arrangements for payment of rent and the landlord was therefore under the general law entitled to bring a suit of the present description for getting possession of the lands in suit as appertaining to the tenancies which the tenants had ceased to possess and for which the tenants were not willing to pay rent; Section 52, Act 8 of 1869, relates to ejectment of tenants on the ground of non-payment of rent. The cause of action in the suit was not, and could not, in the circumstances of the case, be non-payment of rent payable in respect of the tenancies by the tenants but failure on the part of the tenants to make any arrangements for payment of rent-the tenants having abandoned the lands in suit altogether, they having ceased to have any connexion with the tenancies in question. The contention raised on behalf of the appellants as to the applicability or otherwise of Act 8 of 1869 must in our judgment be overruled.
4. The other point raised in support of the appeal to this Court is that in the case of usufructuary mortgage of the description with which we are concerned in the present litigation, it could not be held that the tenants had abandoned the holding. The determination of that question must depend upon the facts of the particular case before the Court. In the present case the finding is quite definite that after the execution of the mortgage in favour of defendant 1 the tenants had ceased to be in possession of the land comprised in the tenancies, and it could not be said that the tenants had still subsisting in them such interest as might entitle the Court to come to the conclusion that the tenants were still exercising acts of possession in respect of the land comprised in the tenancies in question. Our attention has been drawn by the learned Advocate for the appellant to the decision in the case of Aswini Kumar Dhupi v. Har Kumar Ghose : AIR1928Cal891 in support of the proposition that some time must be allowed to the tenant before a suit for possession on the ground of abandonment by the tenant can be brought by the landlord. In that particular case the learned Judges came to the conclusion that the suit was brought rather too hastily by the landlord. On the materials to which reference has been made by the learned Judge in the Court of appeal below it is impossible for us to hold that the plaintiffs landlords were not entitled to assert his right to recover possession of the land which had in this particular case been abandoned by the tenants, more than a year before the date of the institution of the suit. In view of the conclusion we have arrived at, we have no hesitation in agreeing with the decision and decree passed by the Court of appeal below in favour of the plaintiff in the suit. The appeal is dismissed with costs.