JUDGMENT Mookerjee, J. - The subject matter of the litigation which has given rise to this appeal is an agricultural tenancy held by the Plaintiffs-Appellants under their landlords, the Defendants-Respondents. It appears that the Plaintiffs executed a mortgage of this property in favour of the fifth Defendant, who obtained an ex parte decree thereon in the year 1892. Subsequently, in execution of the decree, the holding was sold and purchased by the decree-holder who obtained delivery of possession in 1898. In 1902, the landlords brought a suit for declaration that the holding was non-transferable and that the purchaser at the mortgage sale had not acquired any interest therein. The present Plaintiffs were not made Defendants to that litigation. In 1903, the landlords obtained a decree for ejectment as against the purchaser at the execution sale. They executed the decree and on the 30th June 1904 obtained delivery of possession through the Court. On the 30th August 1904, the Plaintiffs commenced this action for recovery of possession. Their case as laid in the plaint is that at the date of the institution of the suit they had a subsisting tenancy right, and that the re-entry by the landlords was unlawful. The Courts below have concurrently held that there was a mortgage decree in 1892, followed by a sale in 1898, and that since the date of the sale, the Plaintiffs have not been in possession of their holding. The Court of first instance, however, made a decree in favour of the Plaintiffs on the ground that their tenancy right had not been extinguished. The Subordinate Judge has reversed that decision on the ground that there was an abandonment by the Plaintiffs, and that at the date of the institution of the suit, there was no subsisting tenancy on the basis of which they were entitled to recover possession. The Plaintiffs have now appealed to this Court, and on their behalf it has been contended, that the tenancy was subsisting at the date of the commencement of the action, inasmuch as admittedly, the landlords did not re-enter after they had complied with the provisions of sec. 87 of the Bengal Tenancy Act. The substantial question, therefore, which calls for decision is whether the provisions of sec. 87 of the Bengal Tenancy Act. The substantial question, therefore, which calls for decision is whether the provisions of sec. 87 are exhaustive, or whether a tenancy may be terminated by voluntary abandonment and the landlord may lawfully re-enter even though he does not follow the procedure laid down in that section. 2. The first sub-section of sec 87 provides that if a raiyat voluntarily abandons his residence without notice to his landlord and without arranging for payment of his rent as it falls due and ceases to cultivate his holding either by himself or by some other person, the landlord may at any time after the expiration of the agricultural year in which the raiyat so abandons and ceases to cultivate the holding, enter on the holding and let it out to another tenant or take to cultivation himself. The reasonable construction of which this subsection admits, appears to us to be that abandonment is the effect of the act of the tenant in vacating the holding without making arrangement for payment of his rent as it falls due, and for cultivating the land. If a tenant ceases to cultivate his holding either by himself or by some other person, if he omits to make arrangement for the payment of rent as it falls due, and if he does these acts without notice to his landlord, there is an abandonment. No doubt whether there is abandonment or not in any individual case is a question of intention to be determined upon the facts of the particular case. But we are unable to accept the contention of the learned vakil for the Appellants that in order to effect a legal abandonment and to allow a valid re-entry by the landlord, service of notice under sub-sec. 2 of sec 87 is necessary. One test seems to be conclusive upon the point. If the service of notice by the landlord is necessary for the determination of the tenancy, how is it that under sub-sec. 3, it is open to the tenant even after such notice has been served, to recover possession from the landlord, on the ground that as a matter of fact there was no abandonment, because although he might have temporarily vacated his holding, he had no intention to abandon it. Sub-sec. 3 conclusively shows that the abandonment, if there is one, is independent of the service of notice. Sub-sec. 3 conclusively shows that the abandonment, if there is one, is independent of the service of notice. The only effect of the service of notice is to make it obligatory upon the tenant to have speedy determination of the question, whether there has been an abandonment or not. If the landlord re-enters without service of notice under sub-sec. 2, it is open to the tenant to bring a suit for recovery of possession till his rights have been extinguished by the law of limitation. In other words, if the tenant is au occupancy raiyat, he has two years from the date of dispossession within which to bring a suit under Sch. III, Art. 3 of the Bengal Tenancy Act. If on the other hand, be is a non-occupancy raiyat, he could sue within a period of six, if not twelve, years upon the authority of the Full Bench decision of this Court in the case of Tamizuddin v. Ashrub Ali ILR 31 cal 617 (1904), [Reference may be made to Art. 3, as recently amended, which fixes a period of two years for all raiyats and under-raiyats]. When, however, the notice under sub-sec. 2 has been served, the tenant, who wishes to recover possession of the holding, must, if an occupancy raiyat, bring the suit not later than the expiration of two years and if a nonoccupancy raiyat, must bring a similar suit not later than the expiration of six months, from the date of the notice. We are, therefore, unable to uphold the contention of the learned vakil for the Appellants, that see 87 is exhaustive and that the landlord is a wrong-doer if he re-enters upon the holding before he has followed the procedure laid down in that section. We have arrived at this conclusion upon a construction of the section itself and independently, of the decided cases on the point. The learned vakil for the Appellants has, however, invited our attention to the cases of Lal Mamud Mandul v. Arbullah Sheikh 1 C.W.N. 198 (1896), Samujan Roy v. Munshi Mahaton 4 C.W.N. 493 (1900), Madan Mondal v. Mahima Chandra Mazumdar ILR 33 Cal. 531 (1906) and Rajani Kanta Biswas v. Ekkari Das 11 C.W.N. 811: s.c. ILR 34 Cal. 689 (1907). In the first of these cases, it was held expressly that the provisions of sec. 531 (1906) and Rajani Kanta Biswas v. Ekkari Das 11 C.W.N. 811: s.c. ILR 34 Cal. 689 (1907). In the first of these cases, it was held expressly that the provisions of sec. 87 are not exhaustive, as that section does not define abandonment, or give an exhaustive description of the facts which constitute abondonment. This case, therefore, is clearly opposed to the contention of the Appellants. The second case is also against the view urged on behalf of the Appellants, at any rate, it undoubtedly does not justify an inference in their favour. The learned Judges who decided that case held that where a raiyat had sold a non-transferable holding, was no longer in possession of the same and paid no rent for it and the landlord brought a suit to eject both the transferor and transferee, the landlord was entitled to a decree; it was observed that no notice under sec. 87 was necessary to enable the landlord to obtain possession of the holding, inasmuch as the provisions of that section were not exhaustive. If the contention of the present Appellants were well-founded, in a suit by the landlord as against the tenant and his transferee, the Plaintiff would not be entitled to decree as against the tenant, because if the service of notice under sub sec. 2 of sec. 87 was essential to complete a valid abandonment, there was no termination of the tenancy, and the landlord would consequently be entitled to a decree only as against the transferee but not as against the transferor. This is unquestionably not the view taken in the case of Samujan Boy v. Munshi Mahaton 4 C.W.N. 493 (1900). In the judgment in the third case, there is one passage which the learned vakil for the Appellants contends is at least ambiguous and may possibly be construed in his favour, the passage in question is as follows:--If we read the words of Sir Richard Couch in his judgment in Narendro Narain Roy v. Ishan Chunder Sen 22 W.R. 22 (1874) along with see. 87, "there can be no doubt, that In order to entitle the landlord to re-enter on abandonment by the tenant, it must be an abandonment in the words of sec. 87, "there can be no doubt, that In order to entitle the landlord to re-enter on abandonment by the tenant, it must be an abandonment in the words of sec. 87, namely, that the raiyat voluntarily abandons his residence without notice to the landlord and without arranging for the payment of his rent as it falls due, and ceases to cultivate. In such a case the landlord's entry would be legal and he may then let out the land to another tenant or take it into cultivation himself." Now, it is to be observed that the learned Judges do not say expressly that service of notice under sec 87 is essential for the purpose of a valid and complete abandonment, and lawful reentry by the landlord on the basis thereof. On the other band, the language used is certainly consistent with the view that for the purposes of a valid abandonment, two things are necessary, namely, the abandonment by the tenant of his residence and cessation of cultivation and omission on his part to make arrangement for the payment of rent as it falls due. No doubt the passage in question has been somewhat differently interpreted in the fourth case cited before us, namely, Rajani Kanto Biswas v. Ekkari Das 11 C.W.N. 811: s.c.I.L.R. 34 Cal 689 (1907). But the learned Judges who decided the last case expressed an opinion that the provisions of sec. 87 are not exhaustive. It is clear, therefore, upon a review of all these decisions, that there is no authority in support of the position taken up by the Appellants, and as we have already explained upon reason and principle also, that view cannot be maintained, We are fortified in this opinion by the circumstance that see 87 has been left untouched in the recent amendment of the Bengal Tenancy Act; it is not unreasonable to conclude, therefore, that the construction put upon the section in the case of Lal Mamud v. Arbullah 1 C.W.N. 198 (1896), which was decided ten years ago, and has never been challenged during this period, is in accordance with the true intentions of the Legislature. 3. What then is the position of the parties in this case if tested in the light of these principles ? 3. What then is the position of the parties in this case if tested in the light of these principles ? The holding in question is non-transferable; the Plaintiffs executed a mortgage in favour of the 5th and 6th Defendants; the mortgage in question was inoperative as against the landlord, but by reason of the doctrine of estoppel, as between the mortgagor and mortagee, the mortgagee was unquestionably operative. [See the decision of this Court in Bhagirath v. Sha-field 4 C.W.N. 679 (1900)]. The mortgagee then brought a suit to enforce the security, it was not open to the mortgagor to deny the title of the mortagee; the mortgagee, therefore, obtained a decree. He executed it, had the property sold, purchased it himself and took possession. The result of this was that the possession of the Plaintiff completely ceased and the holding passed into the occupation of the mortgagee. As against the landlord the mortgagee auction-purchaser, was undoubtedly a trespasser. The landlord, therefore, was entitled to sue him as he did, and to obtain a decree for ejectment. It is suggested, however, that the landlord was bound to join the tenant as a Defendant in that action. In our opinion, there is no substance in this contention. There was plainly no cause of action as against the tenant. An action for ejectment could not be maintained against the tenant who was admittedly not in occupation of any portion of the lands and if the tenant had been joined as a Defendant he would have been entitled to ask for dismissal of the suit as against him, on the ground of want of cause of action. In our opinion, the landlord rightly ejected the mortgagee, auction-purchaser. The tenant now turns round and contends that he is entitled to reenter, because although he has been out of possession since 1898, that is for a period longer than six years before the institution of the suit, there was no abandonment and the tenancy did not terminate. Upon no conceivable principle, can this position be maintained, and a bare statement of the facts is sufficient to show that there is no foundation for the contention of the Appellants. 4. It was further suggested faintly, that the abandonment in this case, if there was any, was not voluntary. Upon no conceivable principle, can this position be maintained, and a bare statement of the facts is sufficient to show that there is no foundation for the contention of the Appellants. 4. It was further suggested faintly, that the abandonment in this case, if there was any, was not voluntary. It was argued that the Plaintiffs lost possession by an involuntary act, namely, by reason of an execution sale. It must be remembered, however, that the execution sale was due directly to a voluntary act of the tenant and is not properly attributable to the act of a stranger. The mortgage was no doubt a voluntary act on the part of the tenant. His omission to pay the mortgage debt was admittedly voluntary; and his failure to satisfy the mortgage decree, when obtained, was equally voluntary. How can it be contended then with any show of reason, that he lose possession of the holding by an involuntary act? In our opinion, the facts found conclusively show that the holding in question has been abandoned, and that at the date of the institution of this suit, the Plaintiffs had no subsisting title on the basis of which they could justly claim to recover possession thereof from the landlords. The appeal consequently fails and is dismissed with costs.