1. Three points were argued in this appeal; first, that the case was governed by the Bengal Tenancy Act and, therefore, Priyanath had occupancy rights and the plaintiff cannot ignore him and ask for khas possession: secondly, that, on the findings, no abandonment is made out and that even if it can be said that there was an abandonment, the abandonment had been waived by the suit for rent brought by the plaintiff in 1908: and thirdly, that upon the findings, the suit for recovery of possession against Fani is barred by limitation.
2. The learned Judge has found that Priyanath abandoned the lands immediately after the lease, that is about 1885.
3. It is contended, first, that no abandonment under Section 87 of the Bengal Tenancy Act is made out; and, secondly, that if there was an abandonment, it had been waived.
4. The learned Judge has found abandonment without any reference to Section 87 of the Bengal Tenancy Act and we think that he had every right to do so. There is nothing in the Bengal Tenancy Act which lays down that an abandonment by a tenant can only be made in accordance with the procedure prescribed by Section 87. That Section lays down a certain procedure to be adopted by the landlord under certain circumstances; it does not confine the tenant to that procedure. The tenant can give up the land: he can cut off all connection with the land; there is nothing to prevent him from doing it. Upon the facts and in the circumstances of the case, the learned Judge has found that Priyanath took no interest in the lease and abandoned the lands. Thus we have a sufficient finding so far as this case is concerned. If he abandoned the lands, then no question under the Bengal Tenancy Act arises; for then he cannot have acquired any right of occupancy, nor can he depend upon the same.
5. As regards the suit of 1908, the plaintiff's plea is that he was ignorant of what had taken place with regard to this land, and that in order to make out a waiver, it must be found that the plaintiff brought the suit of 1908 with full knowledge of the abandonment that had been made by Priyanath before that time. There is no finding in this case that the plaintiff had knowledge of the abandonment. That being so, there cannot be said to have been a waiver by the plaintiff of the abandonment that is found to have taken place immediately after the lease.
6. This disposes of the first and second grounds.
7. The third ground is that if Priyanath abandoned in 1885 or thereabouts, and if Fani has been in possession ever since, then Fani's possession is adverse and he has acquired a statutory title by that possession. This plea, however, was not raised in any of the Courts below. In this Court it was not taken in the grounds of appeal but was taken with notice to the respondent. If it had been a pure question of law independent of any finding of fact, it would have been open to us to consider it and to give it effect. The question of adverse possession, however, is a mixed question of law and fact. We do not know what evidence would have been produced by the parties if the plea had been taken in the Courts below. It may be that the possession was not adverse, because Fani did never deny any body's title. This being so, we do not think that it would be proper to give effect to this plea without further evidence on the point; and since the plea has been taken at a very late stage of the ease, we do not think that an opportunity should be given to reopen the whole case and let in fresh evidence. This disposes of the third ground.
8. In this view of the case, we dismiss the appeal with costs.
S. A. No. 2927 of 1913.
9. This appeal is governed by the same reasons as in Second Appeal No. 2763 of 1913. The title of Priyanath failing, his right of eviction also fails. This appeal also is dismissed with costs.