1. These are six appeals brought by defendants transferees of alleged entire holdings, which were held under the plaintiffs by the transferors who are no parties to the suit. The learned Munsif held that the landlord was not entitled to eject these transferees. The learned Subordinate Judge reversed his decision and held that the landlord was entitled to eject. He, therefore, gave a decree for khas possession to the plaintiff with costs in each case.
2. Three points are taken by the defendants before us in appeal, first, that the suit was not properly framed, inasmuch as it was absolutely necessary to make the original tenants parties; secondly, that on the findings of the Munsif, which have not been reversed by the learned Subordinate Judge, it ought to have been held that the holdings are transferable without the consent of the landlord; and thirdly, that although there have been transfers, no fresh tenancies have been created and, therefore, there has been no abandonment or forfeiture; the plaintiff must show positive abandonment or disclaimer by the tenant of any interest in the holding.
3. Taking the third point first, it is sought to distinguish the plain rule of law, laid down in the leading case of Kabil Sardar v. Chandra Nath Nag Chowdhury 20 C. 590 following the Full Bench ruling in Narendra Narayan Roy v. Ishun Chundra Sen 22 W.R. 22 : 13 B.L.R. (F.B.) 274 by citing two rulings from Mathura Mandul v. Ganga Charan Gope 33 C. 1219; 10 C.W.N. 1033 and Rajani Kanto Biswas v. Ekkari Das 34 C. 689 : 11 C.W.N. 811 : 7 C.L.J. 48. Now in the first of these cases, the ryot did not give up his interest and it was held that the transfer was not intended to be operative, and if the transfer was not intended to be an operative transaction, the mere fact that the ryot went away from the holding to reside elsewhere would not be sufficient to make it a case of abandonment so as to entitle the landlord to re-enter. The case of Rajani Kanto Biswas v. Ekkari Das 34 C. 689 : 11 C.W.N. 811 : 7 C.L.J. 48 was a case where the transferor re-entered the land as sub-lessee from the purchaser and remained in possession but repudiated his relation as tenant to the landlord: it was held that he was not entitled to hold the land as against the landlord. We do not see how this can help the appellant in this case. The test is, as pointed out by the learned Judges, laid down in Section 87 of the Bengal Tenancy Act, namely, that the ryot voluntarily abandons his residence and ceases to cultivate without notice to the landlord and without arranging for the payment of his rent as it falls due. Now a person, who transfers the whole of his holding to a third person and accepts full payment for it and ceases thereby to have any interest in the land, cannot be said to have protected the landlord's interest in the way laid down by Section 87 of the Bengal Tenancy Act; and in the case of Kabil Sardar v. Chandra Nath Nag Chowdhury 20 C. 590 to which we have referred, it was clearly laid down that the reason why the zemindar is entitled to khas possession of the land of the holding which has been sold and of which possession had been given to the purchaser, is that the sale and transfer of possession to the purchaser conveys no title to him, and as the ryot has left the holding and disclaims any interest in it, he must be held to have abandoned it. It does not say that it is necessary to prove as a fact that the ryot has left the holding and disclaims any interest in it; on the contrary; it says that this is a direct inference from the fact that he has sold the entire holding and given possession of it to the purchaser and that seems to be the true rule of law, and we in this case are entirely governed by it. It is not necessary that there should be a repudiation or refusal to pay rent to the zemindar. We, therefore, think that the argument on the third point fails.
4. Coming now to the first point, the Munsif held that the transferors were necessary parties. But this is a pure question of law and we think that he is in error, although the learned Subordinate Judge has not distinctly reversed his finding on this point. If the facts show, as the Subordinate Judge says, they do, that the plea of the transferees that the transferor had any interest in the land is false, it is not only not necessary to make them parties but it would be against the trend of modern judicial practice to load the record with parties who are shown to have no interest in the suit. Order I, Rule 9 of the present Code of Civil Procedure, makes this very clear. We, therefore, think that there is nothing in the first contention of the learned Vakil for the appellant. The transferees are not bound by the judgment.
5. Finally, we come to the second contention, that on the findings of fact by the Munsif, which have not been reversed by the Subordinate Judge, it ought to have been held that the holdings were transferable without the consent of the landlord. It is urged that as regards custom, the Munsif found that nazar was offered by the defendants to the plaintiff and refused. The Subordinate Judge has not expressly set aside his finding of fact, but his own finding certainly sets it aside by implication. It is further urged that the Munsif has found that the zemindar bound himself by a general fixed-rent. We do not think that the finding of the learned Munsif at the bottom of page 9 amounts to this. He says: 'It has been proved by Mohan Chandra Mitra that the plaintiff remained there on that occasion for four or five days during which batches of tenants came to him from time to time and learnt of the settlement of fixed rate of nazar and laharis by the plaintiff.' This finding is somewhat vague. It does not show that the zemindar once for all fixed the rate of nazar for such transfers, nor does it show that such a rate was fixed by custom. Indeed it shows the very reverse. It does show that more than one rate was fixed by the zemindar and that different rates were fixed for different tenants. The learned Subordinate Judge differs from this view of the Munsif, though he may be wrong in saying that it was not the defendant's case. However, whether it was the defendant's case or not that case has been found against them by the learned Subordinate Judge. The effect of the right to refuse nazar, unless it is fixed by custom, obviously gives the option to the landlord. Reliance has been placed by the defendant on the case of Buzlal Karim v. Satish Chandra Giri 15 C.W.N. 752 at p. 756 : 13 C.L.J. 418 : 10 Ind. Cas. 325. The Court there held that it, was necessary to prove that the transfers had been made with the knowledge and without the consent of the landlord and that they have been recognised by him either without the payment of nazar or upon payment of nazar also fixed by custom. Now in this case, there is no mention of any nazar fixed by custom, and there is, therefore, nothing to bind the landlord even if the defendants did offer him nazar, which appears, on the findings of the Subordinate Judge, not to be the case. The examples, which the defendants put forward in their evidence, are all cases where the transfers had been made with the knowledge of the landlord and with his consent, and no number of such cases can prove the case of custom of making transfers with his knowledge and without his consent.
6. We are, therefore, of opinion that these appeals fail upon every ground and must be dismissed with costs.
7. This judgment will govern Second Appeals Nos. 2483 and 3000 to 3004 of 1909.