1. The question raised in this appeal is whether the plaintiff is entitled, as landlord, to khas possession of an undivided, 8-anna share of a non-transferable occupancy holding on the ground of abandonment by some of the tenants. It appears that the holding belonged to one Salimuddi who died leaving his son Karim, the defendant No. 1, and two daughters, Khedi Bibi and Khati Bibi. Khedi Bibi transferred her 4-anna undivided share to one Khalik, who in his turn sold it to Karim in Baisak 1323. After having transferred her interest, Khedi Bibi surrendered her 4-anna share in favour of the landlord. The other daughter Khati Bibi also transferred her undivided 4 annas share to Karim, the defendant No. 1. The landlord sued for possession of 8 anna share on the ground that Khadi Bibi and Khati Bibi bad, abandoned their interest in the holding and also on the ground that in respect of the share of Khedi, there was a surrender in favour of the landlord. The Court of first instance gave a decree to the plaintiff in respect of Khedi's share but disallowed the claim with respect of Khati's share, On, appeal, the learned Subordinate Judge held that the surrender was collusive, but he was of opinion there was an abandonment of the shares of Khedi and Khati and that in con sequence the landlord was entitled to possession in respect of both those shares, Defendant No. 1 has appealed to this Court.
2. The only question for consideration is whether, in the circumstances, the landlord is entitled to get a decree for 8-anna share of the holding. It is found that the holding stood in the plaintiff's sherista in the name of Karim, defendant No. 1, and he was recorded as the sole tenant of the holding in certain settlement proceedings, and that-fast is admitted on behalf of the plaintiff. The holding was one and entire. The transfer was made in the one case, directly, and in the other case, through Khalik to the defendant No. 1 in whose name the jama stood and who, since the death of his father, was alone paying the rent of the entire holding. It is contended on behalf of the respondent that there may be a surrender of an undivided share of a holding. That may be conceded, but it does not follow that there was an abandonment or that in the circumstances of the present case the landlord is entitled to get khas possession. The learned Subordinate Judge says: There was no impediment to the shares of the sisters being treated as separate tenancies if the landlord wished to do so.' But the shares could not be treated as separate tenancies unless all the tenants and the landlord agree, and we do not see how the landlord could treat the undivided shares of Khedi and Khati as separate tenancies without the consent of Karim. A 'holding' must consist of an entire parcel or parcels of land and it does not appear that any entire parcel of land was ever in the possession of Khedi Bibee and Khati Bibee, Even in such a case, it has been held that the transfer of a portion of a holding does not amount to an abandonment so as to entitle the landlord to re enter upon that portion In an, unreported case, Second Appeal No. 1795 of 1906, decided by Brett and Fletcher, JJ., on the 16th February 1909, Satish Chandra Chatterjee v. Bejoy Kumar Pal 13 C.W.N.CXX (120) Notes, the learned Judges observed: the learned Pleader for the appellant admits that only a portion of the holding has been sold, but he says that that portion of the holding is a complete holding within the meaning of the Bengal Tenancy Act because that is the interest of one of the tenants and that tenant has transferred the whole of his interest to the purchaser. We are unable to agree in the view that where there are several tenants in a holding and each of them holds a separate portion of the holding, each of those portions should be treated as a separate holding or that a transfer of one of those portions would operate as an abandonment which would entitle the landlord to re-enter that portion.' The present case is much stronger than the case sited above, There is nothing to show, as already stated, that the ladies held any entire parcel or parcels of land separately. Defendant No. 1 was registered in the landlord's therista as the sole tenant and the transfer were made to him, In the circumstances, we do not think that the landlord was entitled to get khas possession.
3. The result is that the decree of the lower Appellate Court is set aside and the plaintiff's suit dismissed with costs in all Courts.