1. This is an appeal on behalf of the plaintiff in an action in ejectment, The subject-matter of the litigation is an occupancy holding in respect of which the second defendant, was the tenant under the plaintiff. On the 13th May 1905, the second defendant executed a usufructuary mortgage in favour of the first, defendant under the terms whereof the mortgagor was entitled, if he so chose, to remain in possession of the homestead upon payment of a nominal rent. The case for the plaintiff is that upon the execution of the usufructuary mortgage, the second defendant abandoned the holding and the first defendant came into occupation as mortgagee. The plaintiff, therefore, contends that he is entitled to a decree for ejectment against both, against the first defendant, because he is a trespasser in possession, and against the second, because he has severed his connection with the holding. The Court of first instance accepted this contention as well founded and made a decree for ejectment against both the defendants the two defend-a its jointly preferred an appeal against this decree. The Subordinate -fudge has held that in so far as the first defendant is concerned, the decree for ejectment most be maintained, but in so far as the second defendant is concerned, he is not liable to be ejected.
2. On the present appeal, it has been argued on behalf of the plaintiff that this view is erroneous in law and that the plaintiff is entitled to a decree for ejectment against the transferor as well as the transferee. In oar opinion, this contention cannot be supported.
3. On behalf of the appellant reliance has been placed upon the decisions of this Court in the cases of Krishna Chandra Dutta v. Miran Ba ania 10 C.W.N. 499 : 3 C.L.J. 222 and Raski Lall Dutt v. Bidhumukhi Dasi 10 C.W.N. 7l9 : 4 C.L.J. 306 : 33 C. 1094. Neither of these cases, when analysed, is found to be of any assistance to the appellant. In the first of these cases, after a usufructuary mortgage had been executed by the tenant in respect of a non-transferable holding, he abandoned it. The landlord found the transferee in possession and forcibly ejected him. The original tenant thereupon commenced an action for ejectment against the landlord and contended that if the usufructuary mortgage was invalid in law, his tenancy had not been terminated and he was consequently entitled to be restored to possession. This contention was negatived on the ground that the tenant by abandonment had terminated his interest in the land. This decision possibly goes too far and the view may, perhaps, be supported that a temporary abandonment does not necessarily imply an extinction of the rights of the tenant. It is not necessary, however, for the purposes of the present case to consider this aspect of the matter. In the second case, is was found that the tenant, after he had created ueufruofcuary mortgage and placed the mortgagee in possession of the holding, not only completely severed his connection therewith but, as a matter of fact, disappeared from the village. Under these circumstances, it was ruled that the landlord was entitled to possession of the holding not merely as against the transferee but also as against the transferor. In the case before us, although the mortgagee was placed in possession by the mortgagor, yet the latter continued inoccupation of a part of the land of the holding. It is well settled that a usufructuary mortgage of a part of a holding is not equivalent to abandonment Mahomed Taqi v. Choa Lal 13 C.L.J. 499 : 7 Ind. Cas. 750. It has been argued by the learned Vakil for the appellant that he was in possession as a sub-lessee of the transferee, which involved a repudiation of his character as tenant of the landlord. In our opinion, this view cannot be maintained. There is a fundamental distinction between a sale and a mortgage of a holding. A tenant who executes a deed of sale may, perhaps, be deemed to have severed his connection with the holding, although it would be difficult to maintain this vies in the light of the decision of this Court in the case of Dint Nath Roy v. Krishna Bijoy Saha 9 C.W.N. 379. The case of a mortgage, however, is reasonably free from difficulty. The mortgage is executed on the assumption that the tenant has a transferable interest in the land. The execution of a mortgage by itself does not imply a severance of connection of the tenant with the holding, because it is only on the assumption that the fcanancy continues in operation that the mortgagee can have any subsisting interest in the land. Consequently, when a tenant executes a usufructuary mortgage in favour of a third party and places him in possession, there is no repudiation of the relationship of landlord and tenant as between himself and the person under whom he holds the land. The decision of the Full Bench in Nurendro Narain Roy v. Ishan Chunder Sen 13 B.L.R. 274 : 22 W.R. 22 is thus of no avail to the appellant. In the case bafore us, it has further been found that the second defendant, after the execution of the usufructuary mortgage, has paid rent to the superior landlord and has throughout expressed his willingness to hold himself responsible for due payment of rent. It cannot, consequently be suggested that there has been any severance of his connection with the the land. In so far as the right itself is concerned, he has not abandoned it; in so far as the physical enjoyment of the right is concerned, he is still in occupation of a part of the land of the holding, J Under these circumstances, it is difficult to appreciate how the the view can be seriously maintained that the tenant has abandoned the holding and that the landlord has become entitled to reenter. The learned Vakil for the appellant invited our attention to the provisions of Section 25, Clause (b) of the Bengal Tenancy Act. That Section provides that an occupancy raiyat shall not be ejected by his landlord from his holding except in execution of a decree for ejectment passed on the ground that he has broken a condition consistent with the provisions of the Act and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected.' Apart from the question whether the Legislature intended to apply this section to cases of transfers of holdings, it is necessary to observe that the obvious intention of the Section is that the term of the contraofc should be an express term. It has not been suggested that in the case before us, there was any term in the agreement between the second defendant and his landlord that the former would be liable to be ejected in the event of an attempt at a transfer of the holding. We must further bear in mind that if reliance is placed upon Section 25, the provisions of Section 155 have also to be complied with. There is no suggestion that the landlord has made any attempt to bring his case within the provisions of the latter section. We are, therefore, of opinion that in the case before us, there was m abandonment of the tenancy by the original tenant and that consequently the landlord is not entitled to a decree for ejectment against him.
4. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed but without any costs as the respondent has not entered appearance.