1. This appeal arises out of a suit for khas possession. The plaintiff is a co-sharer landlord. Defendant No. 4 Basiruddin was the original tenant of 10 kanis and 18 gandas, consisting of a homestead and cultivable land. He sold 2 kanis to defendant No. 1 in 1310 and gave possession. He was apparently very heavily indebted. He appears to have sold the rest of the land to his wife and then both of them joined in selling the same land to Hussan Ali and Rajjab Ali his wife's brother and brother's son. Then Hussan Ali and Rajjab Ali executed habuliyats in favour of the plaintiff. The learned Munsif held that the sale by Basiruddin, defendant No. 4, of the lards in Schedule 2 to his relations Hussan Ali and Rajjab Ali was a sham transaction made with the object of protecting the property from Basiruddin's creditors, that Basiruddin, although be purported to surrender the holding in Chaitra 1318 B.S., was still in possession of the lands of Schedule 2. He was, therefore, of opinion that Basiruddin defendant No. 4 had not sold or abandoned his entire holding, being still in possession of the land comprised in Schedule 2, and so the plaintiff was not entitled to khas possession.
2. On appeal the learned Subordinate Judge reversed the finding. He held that Basiruddin had parted with the entire jote. He would seem to hold that the sale by defendant No. 4 to Rajjab Ali and Hussan Ali was a genuine transaction and a real sale and that, therefore, defendant No. 4 had parted with his entire holding. He was of opinion that possibly defendant No. 4 was in possession under a korfa settlement of a portion of the land and homestead. He says: 'it might be that under the korfa settlement defendant No. 4 is still in possession of some portion of the land and homestead, but inasmuch as Basiruddin parted with his entire interest in the disputed jote, that fact would not constitute his possession as a tenant under the plaintiff who is, therefore, entitled to the khass possession of the land, when admittedly there is no custom in favour of the transfer of occupancy holdings.' We, therefore, think it necessary to refer him to the following cases.
3. It has been held in this Court in Madar Mondal v. Mohima Chandra Mazumdar 33 C. 531 : 3 C.L.J. 343 that where a tenant having a nontransferable right of occupancy sells such right to a third person and having obtained a sub-lease from the purchaser remains in possession of the land aid cultivates it, the landlord is not entitled to recover possession inasmuch as it does not amount to abandonment. This view has not been dissented from in Rajani Kanta Biswas v. Ekkowri Das 34 C. 689 : 11 C.W.N. 811 : 7 C.L.J. 78 where it was held that when the original tenant after obtaining a sub-lease remained in possession, but repudiated his relationship as tenant to the landlord and sought to re-occupy the land as such tenant, he was not entitled to hold the land against the landlord. We also call attention to Kalim Sheikh v. Mocham Mandal 36 Ind. Cas. 719 : 24 C.L.J. 113 where it has been held that the sale of a portion of an occupancy holding does not cause a forfeiture of the tenancy and if the original tenant after parting with a portion of the holding remains in actual possession of it as an under-raiyat from the purchaser, there is no abandonment of the holding and the landlord is not entitled to khas possession.
4. The learned Subordinate Judge's finding about the possession of defendant No. 4 is very indefinite and having regard to what was distinctly and clearly found by the learned Munsif, we think this is a fit case for remand. The learned Subordinate Judge should find as to whether defendant No. 4 is in possession and still cultivating the land. He will also consider whether he has in any way repudiated his relationship with the landlord or abandoned the holding.
5. We find also that there was a distinct issue raised as to the extent of the share of the plaintiff, whether it was 12 annas or 12 1/2 annas. The learned Subordinate Judge has arrived at no distinct finding about it, and in respect of the mesne profits, he has left the matter to be determined in execution by the lower Court. We think he ought to come to definite findings with regard to the matters also. The appeal is, therefore, allowed. We set aside his decree and direct a remand that all the necessary facts may be ascertained and the appeal heard and disposed of in accordance with law. Costs will abide the final result.