1. Defendant 1, Kala Mia, is the appellant in this ease and in the suit out of which this appeal arises the plaintiffs sued for recovery of khas possession of certain land on a declaration of their title, The main admitted facts relating to this case have been set forth at considerable length in the judgments of the Courts below and it is unnecessary to repeat them at the present stage. It appears that, as far as the plaintiffs are concerned, they based their title primarily on a mortgage which was executed in their favour on 10th July 1910 by a man named Yakub Ali. In due course they instituted a suit on this mortgage. They obtained a decree in 1912 and they purchased the property in suit at the mortgage sale on 11th December 1912. It appears that only the minor mortgagees were able to take possession of the mortgaged property in respect of an 11 anna 4 ganda share. They therefore instituted a partition suit in order to obtain an allotment in respect of their share and they obtained a final decree in the partition suit on 10th February 1931. The plaintiffs took symbolical possession of their share on 5th May 1936, but were unable to take physical possession of their allotment owing to the fact that Kala Mia, defendant 1 was actually in possession. They therefore instituted the suit out of which this appeal arises on 6th October 1936.
2. The main point for consideration in connexion with this appeal is whether or not the title of defendant 1, Kala Mia, is better than that of the plaintiffs. This person bases his title upon a settlement which he had obtained from the landlord on 3rd August 1932 and his contention is that, after the original tenant Minnat Ali had sold the property in suit to Yakub Ali on 10th July 1910; he surrendered this part of the tenancy to the landlord in July 1912. Thereafter, in 1913, the landlord obtained a decree for khas possession against Yakub Ali and the heirs of Minnat Ali and it is said that he actually obtained khas possession on 2nd August 1918.
3. It is contended on behalf of the appellant that the surrender to the landlord by Minnat Ali in 1912 was quite valid in spite of the fact that already in 1910 he had sold to Yakub Ali that portion of the tenancy which he surrendered in 1912 and which includes the subject-matter of the suit out of which this appeal arises. It is also contended that, by virtue of the decree obtained by the landlord on 24th July 1913, the interest of Yakub Ali in this portion of the tenancy had become extinct and in these circumstances the Pal mortgagees could not be regarded as being in any better position than their mortgagor Yakub Ali. I am not prepared to accept these contentions. It is clear from the principles laid down in Dayamoyi v. Ananda Mohan Roy ('15) 2 AIR 1915 Cal 242 that, after the sale by the original tenant Minnat Ali to Yakub Ali on 10th July 1910, although the tenancy was not transferable Yakub Ali nevertheless acquired a right in that portion of the tenancy which had been transferred to him which he was at liberty to mortgage to the predecessors of the plaintiffs. In Dayamoyi v. Ananda Mohan Roy ('15) 2 AIR 1915 Cal 242 it was pointed out that
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 S.87, Ben. Ten. Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.
4. It follows therefore that although the holding with which we are concerned was not a transferable holding, Yakub Ali had nevertheless acquired a valuable interest in the portion which was transferred to him which was binding on his landlord. Further, in view of the principles laid down in Mohsenuddin v. Baikuntha Chandra ('25) 12 AIR 1925 Cal 444 it would follow that after the sale by Minnat Ali to Yakub in 1910 the former was not competent to surrender to his landlord in 1912 that portion of the tenancy which he had already sold to Yakub. In this connexion it is argued that the law as formulated in Mohsenuddin v. Baikuntha Chandra ('25) 12 AIR 1925 Cal 444 could not be applied in respect of a transaction which took place in 1912. I do not, however, accept this proposition. Admittedly, there was no legislative change in the law between 1912 and 1920 as regards the effect of a surrender by the original tenant. It is true that the law with regard to this point was only formulated finally by a Pull Bench of this Court in 1920 but the fact remains that if the principles enunciated in Mohsenuddin v. Baikuntha Chandra ('25) 12 AIR 1925 Cal 444 were good law in 1920 the law as stated in the judgment in that case must also have been the law in 1912 although at that time it may not have been expressly stated in any judgment of this Court. After obtaining the surrender from Minnat Ali in 1912 it is significant that the landlord did not make the Pal mortgagees parties to the suit which he instituted against Yakub and the heirs of Minnat Ali. It therefore follows that any decree for khas possession which the landlord may have obtained in 1914 could only be operative as against the defendants in that suit and against their successors-in-interest. The Pal mortgagees had obtained certain valuable rights in connexion with the mortgaged property on 10th July 1910 and as they were not parties to the landlord's suit in 1913 their interest cannot in any way be affected by the decision in that case.
5. It is argued that the Pals should have instituted some suit or proceeding for the purpose of setting aside the decree obtained by the landlord in 1918 but inasmuch as the decree for khas possession obtained in that suit could only be operative as against the defendants in that suit, such a course does not appear to have been necessary. It follows that the Pals were in a position in 1920 to institute a mortgage suit on the basis of the right which they had acquired from Yakub Ali in 191 I consider that the Courts below have adopted the correct view in holding that this right was not in any way affected by the decree obtained by the landlord in 1913 upon which the title of defendant 1, Kala Mia, depends. I consider that the plaintiffs have succeeded in establishing their title in respect of the property in suit and the judgment of the lower appellate Court on this point is correct. It therefore follows that Kala Mia's appeal must fail as he has not been able to show that he has a better title to the land than that of the plaintiffs. No other matter arises for consideration as the point of limitation which was raised in the grounds of appeal was not pressed. The judgment and decree of the lower appellate Court are therefore affirmed and this appeal is dismissed with costs. Leave to appeal under Clause 15 of the Letters Patent is refused.