PRIONATH BOSE Vs. SRIMATY KUSUM KUMARI DASSI

JUDGEMENT

(1.) THIS, is an appeal by the plaintiff against the judgment of the learned Additional District Judge of Midnapur, dated the 23rd August 1915, affirming the decision of the Munsif of the same place. The Plaintiff was the landlord. The defendant was an usufructuary mortgagee of the recorded tenant who had been put into possession and the plaintiff, therefore, sued the defendant to recover possession. What the learned Judge of the lower Appellate Court has found is this: He has found that the facts proved in this case do not show that the tenant abandoned the holding within the meaning of Section 87 of the Bengal Tenancy Act. But it is laid down by the Full Bench of this Court in the case of Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 18 C.W.N. 971 : 42 C. 172 20 C.L.J. 52 (F.B.) that where the transfer is the sale of the whole holding the landlord, in the absence of his consent, is ordinarily entitled to enter on the holding, but where the transfer is of a part only of the holding or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy. The learned Judge in this case has only enquired into (a), namely, as to whether there had been an abandonment within the meaning of Section 87 of the Bengal Tenancy Act. He has not enquired into either (b) or (c), as he ought to have, to find whether the landlord has a right of re-entry. The decree of the lower Appellate Court must, therefore, be set aside and the case sent back to that Court for the learned Judge to come to a conclusion as to whether there was a relinquishment of the holding or a repudiation of the tenancy and to pass a proper decree, Costs will abide the result of the re-hearing by the lower Appellate Court.