1. The land in this case formed part of a jots which originally belonged to one Pacha Bama who mortgaged the entire jote to the defendant on the 30th September 1902. After his death, his widow Batashi surrendered the entire holding to the landlord in January 1903. A portion of the jots, namely, the disputed land, was settled with Dhunda Das by the landlord and the plaintiff claims the disputed portion by purchase of the tenancy of Dhunda Das on the 28th December 1910, The defendant claims the land under a kabala from Batachi, widow of Pacha Bama, executed on the 19th March 1915 in satisfaction of the mortgage which had been executed by Pasha in favour of the defendant.
2. The plaintiff granted a dur-chukani settlement in respect of the land to Batashi and Dhunda Das and in execution of a decree for arrears of rent against them purchased the disputed land. He obtained possession through the Court but did not obtain actual possession, having been dispossessed from the land by the defendant.
3. The suit is, therefore, one for recovery of possession on declaration of the plaintiff's title.
4. In the case of Mohsenuddin v. Bhagaban Chandra 61 Ind. Cas 4(sic)3 : 32 C.L.J. 286 : 25 C.W.N. 29 : 48 C. 605. (2) 27 Ind. Cas. 564 : 19 C.W.N. 268, the Full Bench has held that, when an occupancy raiyat has transferred part of his non-transferable holding, he is not competent to surrender to his landlord the portion so transferred either by surrender of that portion alone or by surrender of the whole, inclusive of such portion.
5. There is no doubt that a parson who has parted with his interest in property, cannot deal with that interest by surrendering it in favour of the landlord and he cannot confer upon the landlord a higher right than he could have passed to any other person by assignment. The interest of the defendant in the disputed property as mortgagee, therefore, cannot be affected by the surrender in favour of the landlord. That is also laid down in Clause (b) of Section 86 of the Bengal Tenancy Act.
6. The learned Pleader for the appellant, however, contends that the surrender in favour of the landlord is wholly invalid and confers no title whatever upon him. We are unable to accept this contention as sound.
7. A surrender by the tenant after he has dealt with a portion of the holding in favour of another parson amounts to no more than an assignment in favour of the landlord. But there is no reason why the landlord should be in a worse position than if the assignee were a third party and why be should not acquire all the interest which was left in the tenant at the date of the surrender.
8. In the present case, at the date of the surrender, Batashi was in possession of the jote and she had a right to it, subject only to the mortgage in favour of the defendant and all the rights she had, she surrendered in favour of the landlord, The landlord thereupon was entitled to possession of the jote and to hold it subject to the rights of the mortgagee. It is true that the defendant obtained possession but he was not a mortgagee in possession. Batashi had no right to convey nor confer any right to possession after the surrender in favour of the landlord in 1905. We are unable, therefore, to hold that the defendant is entitled to resist the claim for possession as against the plaintiff who claims under a settlement from the landlord.
9. The learned Pleader for the appellant has strongly pressed upon us to order the plaintiff to redeem the mortgage in this suit. But, apart from other considerations, the landlord who acquired the equity of redemption under the surrender is not the plaintiff. The plaintiff obtained a settlement of only a portion of the jote, namely, the disputed land from the landlord and we do not see how the plaintiff can be directed to redeem the entire mortgage.
10. The appeal must accordingly be dismissed, We make no order as to costs.