JUDGMENT Bomford, J.M. 1. [November 9, 1937] Sarup Kohar was an occupancy tenant of a holding of 5 50 acres including No. 25 rented at Rs. 15-10. 2. On the 2nd January, 1934, for some reason or other, (he says he was misled by the opposite-party) he filed a surrender of his whole holding before the Sub-divisional Officer. u/s 103 it is necessary for a surrender to be valid that due notice should be given to the landholder. The papers were accordingly sent to the Tahsil for necessary action. But the tenant never paid the necessary process fees and eventually on 6th April, 1934, the Tahsildar ordered the file to be deposited. The result was that the tenant remained liable for the rent of the holding for the next year and there was no change in his status. But No. 25 was sub-let to one Chhotak and the landholder sued Chhotak for abetment as a trespasser u/s 44, his view being that the tenancy having come to an end the sub-tenant could only retain possession as a trespasser. Chhotak made no attempt to contest the suit and possession was formally given to the zamindar on 29th June, 1934. Sarup Kohar had in the meanwhile filed a suit u/s 123 for a declaration that he was still an occupancy tenant but realizing that he was still in possession and that there was nothing to be gained by the suit he withdrew it with permission to bring it again if he wished. On 22nd December, 1934, he filed his present suit u/s 99 in respect of No. 25 alone. 2. The Assistant Collector dismissed his suit on the ground that he had not been wrongfully ejected. The Commissioner dismissed the appeal taking the view that notice of surrender is evidence that surrender did take place and that the Plaintiff could raise the question of invalidity of the notice in a case under. Section 123. On this point the Commissioner undoubtedly erred. If the tenant lost possession whether by force or fraud in June, 1934 he most assuredly could not bring a suit u/s 123, more than six months after that date. Section 99 is the only section under which he had a remedy. The Commissioner is further wrong in suggesting that notice constitutes surrender. The Board have held repeatedly that only cessation of cultivation constitutes surrender. 3. Section 99 is the only section under which he had a remedy. The Commissioner is further wrong in suggesting that notice constitutes surrender. The Board have held repeatedly that only cessation of cultivation constitutes surrender. 3. It is not however necessary to consider if the plaint and the statement of the Plaintiff in the witness box can be reconciled with the argument which is now put forward on his behalf, viz., that he was in possession of No. 25 in virtue of the fact that he was the person through whom Chhotkan held possession, having been his sub-tenant since 1335 F.; the question for decision is whether he can be considered to have retained constructive possession of No. 25 because he retained possession of the rest of his holding, which is indicated from the entries in the papers and the fact that such possession has never been challenged in the course of the case. 4. The Respondent would argue that in accordance with Section 32 the surrender operated to extinguish the right of the sub-tenant who had been holding for more than the legal period, so the question is whether the interest of the tenant-in-chief was actually extinguished by the mere fact that he agreed to surrender. Reference is made to Nawab Syed Haidar Sultan v. Behari, (1928) 9 U.D. 150 in which case the occupancy tenant had died so that ruling is hardly applicable. He also refers to Manpal v. Mewasi Ram. (1925) 6 U.D. 461 In that case the tenant-in-chief filed a surrender but the holding was in the possession of mortgagees. When the zamindar sued to eject them they pleaded that the agreement to relinquish was void as having been made without consideration. The Board remarked that in the ordinary course the filing of a deed of relinquishment would mean that the rights of the mortgagees were also determined. They held that the surrender had been made of the tenants free will, but the fact that the tenant was no longer liable to pay the rent might amount to consideration and did not accept the argument that there was no physical surrender because in the circumstances physical surrender would be impossible. 5. They held that the surrender had been made of the tenants free will, but the fact that the tenant was no longer liable to pay the rent might amount to consideration and did not accept the argument that there was no physical surrender because in the circumstances physical surrender would be impossible. 5. That judgment suggests that in that case the tenant did agree to surrender and did not wish to retain possession of his holding and there is no doubt that in such circumstances the rights of illegal sub-tenant and mortgagees are extinguished. 6. But 1 cannot see in this case that there is evidence that the tenant did carry out his expressed intention to surrender. If he had given up possession of the other fields in his holding then it might indeed have been held that he had a so surrendered his possession in No. 25 as well, but of such surrender of the rest of the holding there is as I have said no indication. The facts suggest to me that the tenant resiled from his with to surrender, if he ever did so wish and he must therefore be regarded as having remained in constructive possession of No. 25 until he was ejected by the action of the landholder in ejecting Chhotkan the sub-tenant. If then he had no intention of surrendering voluntarily that action on the part of the landholder would amount to illegal ejectment. I would therefore set aside the orders of the Court below and direct that the suit should have been decreed with costs throughout and Rs. 10 pleader's fee in this Court. It remains however to remand the suit to the Court below for a finding on the issue of damages on which there has naturally been no finding up to date. Report should be made in three months and ten days will be allowed for objections, though I shall not necessarily hear parties again. Darling, S.M. [November 12, 1937] 7. I agree.