1. The defendants third party were the tenants of an occupancy holding of 22 bighas and odd in Msouza Roshanpur. They executed a zurpeshgi lease of the entire holding in favour of the defendant 2nd party, who has been found to be a benamidar of defendant first party in 1896, and directed the zurpeshgidar to pay the rent. It has been found that notwithstanding the zurpeshgi the tenants continued in possession somehow or other until 1310) when they fled to smother village. It has been found that the zurpeshgidars's paid the rent from time to time in execution of decrees against the tenants: in one case the dues were deposited after sale. The amounts deposited by the defendant second party from time to time were withdrawn by the plaintiffs, in some cases under protest and in one case without protest, in 1909 the question whether the mortgagee was entitled to deposit the money was fought out in Court and the learned Munsif held that he could deposit under Section 170, Clause (3) and allowed the deposit and struck off the case as satisfied, but he made a remark at the close of his judgment that this order would not affect the jural relations between the parties, which would remain as before. This suit was brought for the ejectment of the defendants from the 14 bighas odd that have fallen to the patti of the plaintiff's under a butwara by the Collector, on the ground that there was no custom of transfer and the defendants wore trespassers.
2. Both the Courts below decreed the suit and defendant Motookdhari Sukul of the second party has appealed.
3. It has been argued in bar of the appeal that the appellant has been found to be a benamidar of Ami Prosad, defendant first party, and cannot, therefore, maintain the appeal. It has been pointed out, however, that the decree for mesne profits and costs are against both defendants, first and second parties, and I think the defendant second party can appeal against the decree, and as the ground is common to himself and defendant No. 1, so far at least as the question of mesne profits is concerned, the whole case comes under review, inasmuch as there can be no decree for mesne profits unless there is a decree for possession.
4. On the merits it has been contended by the learned Vakil for the appellant that (1) whether under protest or not the plaintiffs have accepted rent deposited by him as a mortgagee and have thereby recognized the mortgage.
(2) That there has been no abandonment by the tenants as they have arranged for the payment of the rent.
(3) That the plaintiff is entitled to only 14 bighas out of 22 big has and there can be no ejectment from a part of a jote.
5. The third ground was set at rest at once as there was no plea upon the same in the Courts below and no ground in this Court.
6. As regards the second ground, it is contended that all the requirements of Section 87 of the Bengal Tenancy Act do not exist, in that the only ground on which the tenant is said to have abandoned the holding is that he has left the village. The plaintiffs, however, are not proceeding under that section, and it has been held that the section is not exhaustive and the landlord may proceed by suit if he can prove that the facts and circumstances of the case load to an inference of abandonment: See Samujan Roy v. Munshi, Mahaton 4 C.W.N. 493; Ram Pershad Koeri v. Jawahir Roy 7 C.L.J. 72 : 12 C.W.N. 899.
7. Then coming to the first ground, I have to consider it in two aspects.
8. It is contended that as rent paid by the mortgagee as such has been received without protest even for one occasion, there has been a recognition of the mortgagee as such. In the case of Baroda Churn Dutt v. Hemlata Dasi 3 Ind. Cas. 561 : 13 C.W.N. 883 : 10 C.L.J. 610 Sir Lawrence Jenkins, C.J. and Mookerjee, J. held that there was a complete recognition of the mortgagee as such when the landlord on receipt of rent gave a receipt in the name of the tenant through Baroda Churn Dutt, the mortgagee.' In this case the plaintiffs received without protest the rent deposited by the mortgagee as such and I think the same principle is applicable, and there has been such a recognition of the fights of the mortgagee as such that the plaintiffs cannot evict the mortgagee as a trespasser.
9. In this view of the first aspect of the question it is not necessary to labour the second aspect of the case which also appears to be in favour of the appellant. The next aspect of the question is that the acceptance under protest also would operate in favour oil the payer as a waiver of any forfeiture incurred. In the case of George Henry Davenport v. Queen (1877) 3 A.C. 115 at. 132 : 47 L.J.P. C. 8 : 37 L.T. 727 their Lordships of the Judicial Committee said: 'Where money is paid and received as rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfeiture cannot countervail the fact of such receipt.' This case was followed in the case of Kali Krishna Tagore v. Fuzle Ali Chowdhry 9 C. 843 : 12 C.L.R. 592. In that case the tenant had incurred a forfeiture, but the hit id lord received a portion of the rent hut kept the payment in suspense until the whole; rent was paid, it was held that such a qualification did not make the payments anything else than payments of rent and that the lessor had waived his right to insist on ejectment. The protest, therefore, under which the plaintiffs received the amount deposited by the mortgagee did not make the receipt the less a receipt of rent from a mortgagee. In either view of the question, therefore, the mortgage has been recognized by the plain tills and they are not entitled to a decree for ejectment.
10. The appeal is accordingly decreed with costs in all Courts. The same order will be made in Appeal No. 664.