JUDGMENT Jenkins, C.J. - The Plaintiff by this suit asks for confirmation of possession after the establishment of her title to the disputed land. The land at one time belonged to one Jagabandhu as an occupancy raiyat. He purported to mortgage it to Defendants Nos. 1 and 2 for a term of 9 years by way of an usufructuary mortgage. Defendant No. 3 is the burgadar under Defendants Nos. 1 and 2. The Plaintiff would make out her title in this way :-She says that Jagabandhu's interest terminated, that Defendants Nos. 4 and 5, the landlords, entered into possession and settled the land with her, and therefore, the Plaintiff says, she is entitled to a decree against Defendants Nos. 1 to 3 who contest her right. 2. It appears that prior to this suit there was a proceeding under sec. 9 of the Specific Relief Act between the Plaintiff and the contesting Defendants which resulted in a decree in favour of the present contesting Defendants. That decree, however, was not executed as there was a stay of execution pending this suit; and the importance of this is that it furnishes an answer to that which is suggested on the part of the Respondent in this case to be an obvious solution in her favour of the present litigation. It was urged on behalf of the Plaintiff that as she is in possession and as Defendants Nos. 1 to 3 can have no title inasmuch as the occupancy right was not transferable therefore there was an end of the suit at once. But the answer to that is that had the decree under the Specific Relief Act been executed then the Defendants would have been in possession, and it would have been therefore incumbent on the Plaintiff to make out her light to the present possession; and a stay of execution in the circumstances I have indicated cannot disturb the rights of the parties. The problem, therefore, that we have to consider is whether the Plaintiff has affirmatively made out her title to possession, and, in the circumstances, to confirmation of possession as against the Appellants Defendants, that is, Defendants Nos. 1 to 3. The problem, therefore, that we have to consider is whether the Plaintiff has affirmatively made out her title to possession, and, in the circumstances, to confirmation of possession as against the Appellants Defendants, that is, Defendants Nos. 1 to 3. This I think turns upon the question whether it is made out that Jagabandhu's interest came to an end, and this must depend upon whether there was a complete abandonment of the holding by Jagabandhu resulting;in a termination of his interest. We have been referred to sec. 87 of the Bengal Tenancy Ac, and it has been pointed out to us that the conditions there prescribed have not been observed, and it was argued,-though with a full recognition of the fact that there were cases to the contrary,-that as the conditions prescribed by sec. 87 were not observed, the landlord was not entitled to enter. That is not my reading of sec. 87. This is a special section which entitles a landlord, to exercise a certain definite power defined in the section, on the establishment of certain conditions, and those conditions are that the raiyat has voluntarily abandoned his residence, that he has done that, without due notice to his landlord and also without arranging for payment of his rent as it falls due, and finally that he has ceased to cultivate his holding either by himself or by some other person. Where those conditions concur, the landlord can, in accordance with the terms of sec. 87, treat the holding as abandoned on following the procedure laid down in the section, but this is all subject to the qualification that it is open to the raiyat within a limited time to satisfy the Court that in fact he did not voluntarily abandon his holding. But the problem that is relevant to this case is I think this, has there in fact been an abandonment of the holding ? That is largely and principally a question of fact and one on which the opinion of the lower Appellate Court must carry considerable weight when the matter comes before this Court in a special appeal. 3. But the problem that is relevant to this case is I think this, has there in fact been an abandonment of the holding ? That is largely and principally a question of fact and one on which the opinion of the lower Appellate Court must carry considerable weight when the matter comes before this Court in a special appeal. 3. The judgment of the Subordinate Judge in this case is not as clear and as specific as it might have been, but there is the definite finding that Jagabandhu does not live in the village and further that he has not got any connection with the jote in suit. What is the meaning of that ? As I read the whole judgment, it means that Jagabandhu's interest in the jote has ceased. Can we say that that is an erroneous conclusion with which we can interfere in second appeal ? 4. I was very much impressed by Mr. Harendra Narain's able argument and more particularly that part of it in which he relied on the fact that thee were receipts in this case going to show that rent had been paid, and I was all the more impressed, because there is an apparent absence of consideration in the judgment of the Subordinate Judge of this mater. But I find that there is an absolute denial of receipt of rent by the landlord, and in the circumstances I am not prepared to say that the learned Judge has overlooked that aspect of the case. Indeed it is difficult to believe that he could have overlooked it, because it is one that must have been brought to his notice. I quite understand that the Judge may have been convinced by the evidence of the landlord negativing payment of rent. 5. The result is that I hold there has been a finding to the effect that the interest of Jagabandhu has come to an end, not merely because he created an usufructuary mortgage but on a consideration of all the circumstances. I quite agree with the argument that was advanced before us that the mere execution of an usufructuary mortgage might not be sufficient to establish abandonment, but that act was one of the rainy dramatic circumstances winch go to show that Jagabandhu has no further connection with that jote. 6. I quite agree with the argument that was advanced before us that the mere execution of an usufructuary mortgage might not be sufficient to establish abandonment, but that act was one of the rainy dramatic circumstances winch go to show that Jagabandhu has no further connection with that jote. 6. The judgment of the lower Appellate Court, which might have been clearer, must be upheld and the decree of that Court confirming the possession of the Plaintiff is confirmed with costs. 7. I wish to add that one of the points urged before us is that the suit was defective because of the absence of Jagabandhu. I do not think that is a sound contention; but at the same time it must be remembered that this decree can have no operation against Jagabandhu who is not a party to the litigation. Ray, J. I agree.