Askar Ali v. Goupee Mohan Chowdhury — 1913 DIGILAW 239 (CAL)

JUDGMENT 1. This is an Appeal by the second Defendant in an action in ejectment. The subject-matter of the litigation consists of nine parcels of land, which, the Plaintiff alleges, are comprised in a tenancy held by the thirteenth Defendant under him. The case for the Plaintiff is that in 1903 the tenant unlawfully transferred a portion of the holding to the contesting Defendants, that thereafter, on the 27th May 1908, the tenant surrendered the holding in his favour, and, that consequently, he is entitled to recover possession thereof. The Court of first instance found with regard to two of the plots, namely, the first and the thirds that they were not included in the tenancy of the thirteenth Defendant. As regards the surrender, the Court found that it was fictitious, as notwithstanding the execution of the deed of release, the tenant had continued in occupation of the remainder of the land. In this view, the Court of first instance dismissed the suit. Upon appeal, that decree has been reversed by the Subordinate Judge. On the question of the genuineness of the surrender, the finding of the Subordinate Judge is ambiguous. He states that even if the deed be collusive and intended to cheat the transferee, the latter has his remedy against the transferrer. In the opinion of the Subordinate Judge the Plaintiff is entitled to re-enter even though there has been no real surrender in his favour. The second Defendant has now appealed to this Court, and on his behalf the decree of the Subordinate Judge has been assailed on two grounds, namely, first, that the Plaintiff cannot succeed inasmuch as there is no real surrender in his favour; and, secondly, that the Plaintiff is not entitled to reenter, because even if the surrender represents a real transaction, it does not affect the interest or prejudice the position of the transferee. In so far as the first point is concerned, it is plain that the Subordinate Judge has not reversed the clear findings of the Court of first instance. That Court found that notwithstanding the execution of the deed of surrender, on the 27th May 1908, the tenant has continued in occupation of the homestead and a portion of the remaining land of the tenancy. That finding is not displaced by the Subordinate Judge. That Court found that notwithstanding the execution of the deed of surrender, on the 27th May 1908, the tenant has continued in occupation of the homestead and a portion of the remaining land of the tenancy. That finding is not displaced by the Subordinate Judge. On the other hand, the Subordinate Judge holds that the tenant, no withstanding the execution of the deed of relase, has continued in occupation with the permission of the landlord. In our opinion, there is no room for doubt that the alleged surrender was collusive. It has been argued, however, that even if the surrender was collusive, the Plaintiff is entitled to reenter. We are of opinion that there is no foundation for this contention. If the surrender was collusive, the tenancy of the thirteenth Defendant has not yet terminated, and, so long as that tenancy subsists, the Plaintiff is not entitled to eject the transferee. It has been ruled in a series of cases of this Court, amongst which may be mentioned those of Chandra Mohun v. Bisseswar 1 C.W.N. 158 (1892), Durga Prosad Sen v. Doula Gazee 1 C.W.N. 160 (1894) and Kabil Sardar v. Chandra Nath Nag Chowdhury ILR 20 Cal. 590 (1892), that as long as the tenancy subsists, the landlord is not entitled to eject the transferee of a portion of the holding. The first ground must consequently succeed. 2. In so far as the second ground is concerned, reliance has been placed by the Respondent upon the case of Tamizuddin Khan v. Khoda Nawaz Khan 14 C.W.N. 229(1909) to show that a purchaser of a portion of a holding is not protected under sub-sec. (6) of sec. 86 of the Bengal Tenancy Act. In the view we take of the rights of the parties with reference to the first question raised before us, it is not necessary to decide whether the case of Tamizuddin Khan v. Khoda Nawaz Khan 14 C.W.N. 229(1909) furnishes a correct exposition of the law. We may point out, however, with regard to that decision that there are at least four points which require consideration. In the first place, the learned Judges adopted, for the purposes of the interpretation of sec. 86 which finds place in Chap. IX of the Bengal Tenancy Act, the definition of the term 'incumbrance' given for the purpose of Chap. XIV alone. In the first place, the learned Judges adopted, for the purposes of the interpretation of sec. 86 which finds place in Chap. IX of the Bengal Tenancy Act, the definition of the term 'incumbrance' given for the purpose of Chap. XIV alone. In the second place, the decision of this Court in the case of Chandra Sakai v. Kali Prasanna ILR 23 Cal. 254 (1895), shows that an exchange is an encumbrance within the meaning of sec. 161 of the Bengal Tenancy Act, and in relation to the question raised before us, there does not appear to be any real distinction between an exchange and a sale. In the third place, the effect of the decision is to place the purchaser in a worse position than a mortgagee or lessee under sub-sec. (6) of sec. 86. In the fourth place, it may be a question, whether there can be a surrender effective for the purposes of sec. 86 when the conditions mentioned in sub-sec. (5) cannot be fulfilled. But as we have already said it is not necessary for us to determine, whether the case of Tamizuddin Khan v. Khoda Nawaz Khan 14 C.W.N. 229 (1909) was correctly decided, and we reserve our opinion upon the question involved in that litigation. 3. It has finally been urged that the case of Gagan Chandra Chowdhury v. Alek Chand Saha 17 C.W.N. 698 (1913) assists the contention of the Respondent. That case, however, is clearly distinguishable. There, it was ruled, upon the authority of the earlier decisions in Badan Chandra Das v. Rajeswari Debya 2 C.L.J. 570 (1905) and Rajendra Kishore Adhikari v. Chandra Nath Dutt 12 C.W.N. 878 (1907), that when there has been a surrender of a part of a holding by a tenant the landlord is entitled to re-enter, even though he is aware that there is some one else in possession claiming under a title derived from the tenant. But it has been overlooked by the learned Vakil for the Respondent that in Gagan Chandra Chowdhury v. Alek Chand Saha 17 C.W.N. 698 (1913), there was no encumbrance secured by a registered instrument within the meaning of sub-sec. 86. The result is that this Appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored. 86. The result is that this Appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored. This order will carry costs, both here and in the Court of Appeal below.