1. The defendants were formerly the tenants of the plaintiffs in respect of a non-transferable ryoti holding. In 1897, the defendants mortgaged the holding byway of conditional sale and put the mortgagee in possession. It is clear from the judgment of the Subordinate Judge that he has found that the defendants then left the village without making any arrangement for the payment of the rent due to the plaintiff. On the 7th Falgun 1306, that is, in the year 1900 one Nabin Nath executed a kabuliyat in the plaintiff's favour for a term of five years, which expired before the present suit was brought. Two days after he acquired the mortgage interest from mesne assignee and he then entered into possession of the holding. He remained in possession till the year 1904 when the defendants brought a suit against him to re-deem the mortgage. In that suit they were successful and upon payment into Court of the sum due upon the mortgage, they were restored to possession. The plaintiff then brought the present suit to recover possession on the footing that the defendants had abandoned the holding and that as against him they had no right to evict Nabin Nath and take possession themselves. The first Court dismissed the suit holding that there had been no abandonment and that the relationship of landlord and tenant between the plaintiff and the defendants had never ceased and still subsisted. The Subordinate Judge in the Court below came to a different conclusion. He found that the evidence established an abandonment of the holding by the defendants in 1894 and upon that basis he made a decree in favour of the plaintiff. The defendants have appealed to this Court.
2. The decision before us has turned principally on the effect of Clauses (2) and (3) of Section 87 of the Bengal Tenancy Act. In our opinion, the provisions contained in those clauses do not help the defendants.
3. It is true that the plaintiff gave no notice to the Collector under Clause (2) of his intention to treat the holding as abandoned but such a notice is not necessary to make an abandonment complete and effectual. The notice is important for the purpose of 'the suit which the tenant is allowed to bring under Clause (3) but is not essential to complete an abandonment; and a landlord who has not given such notice is still at liberty to prove that an abandonment has in fact taken place. As authority, we need only refer to the case of Ram Pershad v. Jawahir 12 C.W.N. 899 at p. 902 : 7 C.L.J. 72 where earlier cases are considered. As there pointed out, the question of abandonment or no abandonment is one of intention to be determined upon the facts of the particular case in which the question arises. In the present cage, the finding of the Subordinate Judge upon that issue is in the affirmative and as we are unable to say that the Subordinate Judge committed any error of law in arriving at that finding, it is now conclusive. If the payment of the mortgage-debt by the defendant in 1904 or 1905 be, so far as it goes, some evidence as to what their intention was in 1894, the Subordinate Judge regarded it as evidence to which in the circumstances, no great weight could be attached and we cannot say that he was wrong in law in so treating it. If they abandoned the holding in 1894, they were not in a position after the plaintiff had re-entered in 1900 to change their minds or their intention and go back to the original state of things.
4. The finding on the question of abandonment is sufficient to support the decree which the Subordinate Judge has made. The defendants had no right as against the plaintiff to transfer the holding by sale or mortgage and the plaintiff is not concerned with the mortgage transaction or any of its developments. On the other hand, the holding having been abandoned, the plaintiff had a right to re-enter as he did and to settle the land with another tenant. Whatever right the defendants may have had against Nabin Nath as between the plaintiff and the defendants, the possession of Nabin Nath must be treated as the possession of the plaintiff and not as the possession of the defendants. The plaintiff was entitled to treat Nabin Nath's possession as rightful possession under the kabuliats and cannot be forced to treat it as wrongful possession under the mortgage. As against the plaintiff, the defendants by their own act have deprived themselves of the title which they once had and are in no better position than trespassers. If it be of any importance, it is not the fact that the person now entitled to actual possession is Nabin Nath, because the term for which he engaged has long since expired.
5. It is idle to say that because the plaintiff gave no notice under Clause (2), the defendant had no opportunity to bring a suit under Clause (3). What issue could have beer tried in such a suit except the issue which has been tried and finally determined between the parties in the present suit, whether or not in 1894 there was a voluntary abandonment of the holding on the part of the defendants? What difference dots it make whether that issue was raised in a suit instituted by the defendants or in a suit instituted by the plaintiff
6. The payment of the mortgage-debt did not, as is apparently suggested for the defendants, give them any sort of equity against the plaintiff. The transfer by mortgage was an infringement of his rights. He was not bound to recognise the transfer and never did so. He was no party to the suit for redemption and the payment made by the defendants and their recovery of possession was subject to his rights which he was free to assert if he chose, unless the defendants were able to prevail upon him to come to some understanding with them. It is not to be wondered at if the plaintiff considers them bad tenants bat it may not even now be too late for them to approach him with a view to arriving at an arrangement.
7. We have said that the finding of the Subordinate Judge on the question of abandonment is sufficient to support his decree. But, on the face of the record, there is also this observation to be made, As we have shown, the defendants were in effect evicted by the plaintiff in 1900 and two years later their right (assuming that they had any right) to recover possession by suit against the plaintiff became barred under Article 3 of Schedule III of the Tenancy Act Ram Pershad v. Jowahir 12 C.W.N. 899 at p. 902 : 7 C.L.J. 72. The result is that in the view we take, this appeal must be dismissed with costs.