1. This is an appeal from the decision of the learned District Judge of the Assam Valley Districts reversing the decision of the Munsif of Gauhati. The facts may be briefly summarised. The plaintiffs' case was that the land in suit belonged to one Behia who is described as a paik of Umanand temple. The land was submerged after the great earthquake of 1897 and the plaintiffs say that Bahia left the village in 1900 and thereafter, in 1915, conveyed the disputed plot to their father. Four years later they were dispossessed by the defendants.
2. The defendants, on the other hand, pleaded that Behia had abandoned the land after the earthquake and that the dolai of the temple settled it with them in 1303 B.S., corresponding to 1905, and granted them a pottah on the 22nd February, 1912.
3. The learned Munsif was of opinion that the plaintiffs had proved their possession in the land transferred to them and their subsequent dispossession by the defendants while the defendants had failed to establish Behia's relinquishment. His title, therefore, still subsisted and he was competent to transfer it to the plaintiffs who were thus entitled to succeed.
4. The learned District Judge on appeal took a different view. He held that the main point for decision was whether Behia had relinquished the land; and upon the evidence he came to the conclusion that, even though there was no verbal relinquishment on his part, his conduct amounted to relinquishment in fact. The learned Judge, therefore, reversed the decision of the Court of first instance.
5. On appeal to this Court, the learned Vakil for the appellant has argued that the Court of appeal below erred in allowing the defendants to make out a new case which was not in their written statement, namely, that Behia had forfeited his tenancy on the ground of relinquishment.
6. There is, in our opinion, no substance in this contention. It is clear from the written statement of the defendants that though the term 'relinquishment was not actually used the defendants intended to raise that question as a bar to the plaintiff's claim. They said that Behia had no saleable interest) and had no possession within 12 years of the institution of suit. This is tantamount to saying that Behia had no saleable interest because he had relinquished the land and, for the same reasons, had not been in possession of the land within 12 years of the institution of the suit.
7. The learned Vakil has urged that a paikan is a tenure which is equivalent to what in English law is known as freehold. He had referred to the case of Dinabandu Sarma v. Bodia Koch (1888) 15 Cal. 100 where the rights and privileges of a pai-kan-holdar are described. It is said that a paikan is a permanent and transferable tenure and, therefore, its incidents are different from those which ordinarily govern a raiyati holding under the Bengal Tenancy Act, but that the learned Judge has failed to distinguish the difference between these two classes of tenures.
8. We are of opinion that there is no difference in the principle under which the fact of relinquishment is in either case to be ascertained. It is pointed out in the case of Ramchurn Singh v. Raniganj Coal Association Limited (1899) 26 Cal. 29 that the right of relinquishment is a privilege given to tenants by means of which they may restrict the lease and establish their tenure upon a new basis or may extinguish the lease altogether and the tenants cannot avail themselves of that privilege to any extent, unless they strictly observe the conditions which are either expressed or implied in the lease. In the case of Chundermonee Nya Bhooshun v. Sumbheo Chunder Chuckerbutty (1864) W.R. 270 it was observed that, although where a tenure is a permanent and transferable one, mere abandonment is not a valid relinquishment, yet a voluntary abandonment for a long period without any inevitable force majeure, or other cause beyond the power of the holder, must be considered to be equal to an express relinquishment; and that, if a man so abandons his holding for years neither he nor any one under him can reclaim it. Now, the findings of fact at which the learned Judge arrived may be stated in his own words: ' We thus have all the elements of relinquishment: leaving the village and settling in a distant-village, cessation of cultivation, cessation, of payment of rent, and, in short, a total severance of all connection with the land for a period of 16 years between leaving the village and the sale to plaintiffs' predecessor.' When the principles enunciated above are applied to these findings, it is plain that by his relinquishment of the land Behia's interest was determined and his conveyance to the plaintiffs' father was incompetent.
9. The result, therefore, is that the decree of the learned District Judge is affirmed and this appeal is dismissed with costs.