JUDGMENT Mushtaq Ahmad, J. - This is a Plaintiff's appeal in a suit for possession over a shop and for recovery of Rs. 72/- as mesne profits. 2. According to the Plaintiff, one Narotam Das was the owner of the shop, but according to the Defendants, he was only its licensee, the shop being situated in plot No. 490 of village Datiana, district Meerut. 3. On July 12, 1932 Narotam Das executed a deed of gift in respect of the shop in suit in favour of one Jahangiri Mal. He subsequently died on May 26, 1933. After his death, the Plaintiff Appellant brought a suit No. 754 of 1939 of the Court of Munsif, Meerut, against the donee, Jahangiri Mal, Respondent No. 4, and Respondents Nos. 3 and 5, treating these Respondents Nos. 3 and 5 as tenants, for possession over the shop on the ground that the Plaintiff was the zamindar and that, the village in question being an agricultural village, Narotam Das had no right to transfer the shop and as a result of this illegal transfer the Plaintiff was entitled to enter into possession. This suit was decreed. Then the suit giving rise to the present appeal was filed in 1944 by the Appellant as the daughter of Narotam Das claiming possession over the shop. Only the Respondents 1 and 2, the zamindar contested the suit. Their main defence was that by executing the deal of gift on July 12, 1932, Narotam Das had abandoned the shop and that the same had therefore escheated to them. 4. The trial Court, holding that Narotam Das had, in fact, remained in possession of the shop until his lifetime inspite of the gift, came to the conclusion that he had not 'abandoned' the shop and that therefore it could not have escheated to the zamindar Defendants. In this view, it decreed the suit. The lower appellate Court, on the other hand, held that an abandonment had taken place as a result of the said gift having been made by Narotam Das and that the Defendants zamindars were entitled to claim possession over the shop. In the result the decree of the trial Court was reversed and the suit was dismissed. 5. The only question therefore, arising before me is whether, in the circumstances of this case, Narotam Das can be held to have abandoned the shop. In the result the decree of the trial Court was reversed and the suit was dismissed. 5. The only question therefore, arising before me is whether, in the circumstances of this case, Narotam Das can be held to have abandoned the shop. It is not denied that, if an abandonment can be deemed to have taken place, the Plaintiff, as the daughter of Narotam Das, would not be entitled to any relief and that in the other case she would be entitled to a decree. 6. It was objected at the very outset by the learned Counsel for the Respondents that the finding of the lower appellate Court that an abandonment had taken place was a finding of fact and could not be impugned in this appeal. The question whether a ryot or a tenant has abandoned the site or not, is, in my opinion, a mixed question of fact and law. So far as the question of his severing all connections with the property is concerned, it is obviously a question of fact. Whether, such severance of connections took place in circumstances which fulfilled the legal requirement of an abandonment by a ryot in favour of his zamindar is, a question of law, the same depending on the legal incidents of the proceedings by which the tenant has withdrawn or detached himself from the property. In several cases that came to this Court this question was treated as a mixed question of fact and law, for instance Sheo Sahai v. Tilok Singh 1936 A.W.R. 541, Fateh v. Har Bilas 1939 A.W.R. (H.C.) 206 and Babu Ram v. Mohammad Hasan Khan 1943 A.W.R. (H.C.) 14. 7. In the present case, as we have seen, Narotam Das executed a deed of gift in favour of Jahangiri Mal. The village in which the shop lay being an agricultural village, it is agreed that Narotam Das had no right to gift the shop and that the donee acquired no interest in the shop under the gift. The sole question to be determined is whether this gift could by itself be any evidence of the abandonment of the shop and the site by Narotam Das so as to make the same capable of escheating to the zamindar. 8. The term 'abandonment' must be taken where the question arises between the ryot and the zamindar as carrying a peculiar meaning. 8. The term 'abandonment' must be taken where the question arises between the ryot and the zamindar as carrying a peculiar meaning. It is not the same thing as relinquishment, for you cannot relinquish except by contacting another in whose favour you are relinquishing. A ryot or tenant on the other hand can abondon the site of his residerce even without taking his zamindar into his confidence. The essence of an act of abandonment is permanent detachment from the property, so that the same may go back to the paramount owner, namely the zamindar. It carries an implication of total desertion so as not to involve any element of a possibility of reclamation at least at the time when it is made. The term is explained in the Law Lexicon of British India, as complied by P. Ramanatha Aiyer at page 3 thus: Abandonment must be made by the owner without being pressed by any duty, necessity, or utility to himself, but simply because he desires no longer to possess the thing; it must be made without any desire that any other person shall acquire the same. For, if it were made for a consideration, it would be a sale or barter; and if without consideration or with an intention that soon other person should become the possessor, it would be a gift. 9. The concept underlying the term, therefore is the complete and final renunciation by the tenant of the property in question without any intention of benefiting another or substituting for himself any person other than the owner of the site. The tenant abandoning should rather have the right of the zamindar in his mind to re-enter on the site than the right of any other individual to claim his bounty or charity. In Misri Lal v. Captain Raja Durga Narain Singh 1940 A.W.R. (H.C.) 171, at page 175 it was remarked that: it is no doubt true that a tenant who abandons a site leaves that site to revert to the zamindar. 10. In the present case, the idea to enable the zamindar to claim back possession over the site finds no expression in the act done by Narotam Das. The only intention and desire which may be deemed to be evidence by the gift made by him was to benefit a particular individual, namely Jhangiri Mal, Respondent No. 3. 10. In the present case, the idea to enable the zamindar to claim back possession over the site finds no expression in the act done by Narotam Das. The only intention and desire which may be deemed to be evidence by the gift made by him was to benefit a particular individual, namely Jhangiri Mal, Respondent No. 3. That circumstance negatived all idea of an intention to abandon, by which we must mean, to abandon in favour of the zamindar. The point distinctly arose before York J. in Babu Ram v. Mohammad Hasan Khan 1943 A.W.R. (H.C.) 14, in which the facts were very much like those here. The learned Judge had the advantage of the decision of another learned Judge Allsop Judge which happily had been affirmed by the Letters Patent Bench. 11. The following passage from the judgment of Allsop Judge was quoted in this case with approval: It has been presumed in the arguments before me that the mere execution of the deed of gift was sufficient to destroy the donor's right of residence. It does not seem to me that there is any justification for a presumption of this kind. It is true that a tenant in an agricultural village in the absence of a custom to the contrary cannot transfer his house as it stands with the right of residing in it; but it is quite a different thing to say that although he cannot transfer his right that right is destroyed the moment he attempts to transfer it. In the present case it may well be that the deed of gift does not confer any title on the two donees; but it is quite a different thing to say that the more execution of it destroys the right of the donor and transfers that right to the zamindars by way of escheat. In order that the zamindar may succeed in a case of this kind, it seems to me that he must show not only that the transferees have no right to the houses but also that the so called transferor has no right either. If the deed is inoperative as a gift the title would not paste the donees but if it did not pass, it would ordinarily still vest in the doner. If the deed is inoperative as a gift the title would not paste the donees but if it did not pass, it would ordinarily still vest in the doner. Where a tenant is in occupation of a house n an agricultural village the custom of the country is such that it may be presumed that he is in possession under a grant from the zaminlar by which he is entitled to retain possession of his house so long as he keeps it in repair and continues to live in it but cannot transfer it and by which if he abandons the house and leaves the village, the site will revert to the zamindar. If a zamindar brings a suit for possession against a tenant and his transferees it is sufficient for him as against the transferees to show that they have no title but as against the tenant himself it is necessary for him to show something more than that tenant purported to execute the deed of transfer. He must show that the tenant in some way as against the zamindar has lost his right of residence and occupation. 12. The above quotation furnishes an answer to the question which I have to determine in the present case. Almost all the material elements in the two cases are common and must lead to a like decision In the present case, beyond the fact of Narotam Das having executed a deed of gift in favour of another, we know nothing else; the gift itself being ex hypothesi inoperative the property in law would revert in favour of the donor. How then could it be said that the donor for all time to come had abandoned the property and made it possible for the zamindar to claim it as of right. Indeed, the trial Court referred to the evidence of Murari Lal, a witness for the Defendants, to the effect that Narotam Das used to remain lying in the disputed shop up to the end of his lifetime. The learned Munsif also pointed out: This inference is supported by the own admission of the Defendants 1 and 2 in suit No. 754 of 1939 wherein it was alleged that though Narotam had gifted the shop yet he had remained in possession until his death (Ex. 1). The learned Munsif also pointed out: This inference is supported by the own admission of the Defendants 1 and 2 in suit No. 754 of 1939 wherein it was alleged that though Narotam had gifted the shop yet he had remained in possession until his death (Ex. 1). Harish Chandra, Ganpat Rai and Babu Ram, the zamindars in mauza Datiyana, have deposed that Narotam Das had not left the shop in suit till the time of his death. 13. Consequently, the trial Court, finding that Narotam Das had remained in possession of the shop in spite of the gift made by him, held that he had not abandoned it. In the judgment of the lower appellate Court, I fined no criticism of the above observations except that Narotam Das and the donee Jahangiri Mal having both been in possession of the shop it could not be said that he had had not abandoned the shop. This was a very poor re action to the trial Court's findings at least in its expression. 14. Learned Counsel for the Defendants Respondents has invited my attention to a number of rulings in support of the judgment of the lower appellate Court. Firstly, he cited the case of B. Kandhaiya Lal v. Hamid Ali A.W.R. 1940 (C.C.) 207. In that case the question was whether a deed of waqf executed by the occupier of a house in an agricultural village in regard to the house amounted to an abandonment of the site by aim. The answer was it did. This answer was based on the ground that by executing a deed of waqf of the house the occupier had permanently severed his connections with the property which position he had further affirmed by allowing the persons to whom possession had been given to build a Thakurdwara on the site. All this was taken to establish the man's permanent and final renunciation of his rights in the property. If this interpretation of the ruling is incorrect, then there will be no option but to infer a conflict between it and the cases of this Court to which I have already referred. 15. Next, the learned Counsel released on the case of Mt. Haliman Bibi and Another Vs. Muhammad Tajamul Hussain and Others, AIR 1939 Patna 504 . If this interpretation of the ruling is incorrect, then there will be no option but to infer a conflict between it and the cases of this Court to which I have already referred. 15. Next, the learned Counsel released on the case of Mt. Haliman Bibi and Another Vs. Muhammad Tajamul Hussain and Others, AIR 1939 Patna 504 . The facts there show that the transferor was in possession of the property he had already transferred with the leave and licence of the transferee. Besides, there is nothing in he case to show that the transfer itself was prohibited by law. It is only in cases in which the transfer is so prohibited so as not to carry any effect in favour of the transferee or, in other words, so as not to affect the rights and interests of the transferor himself that the question with which I am dealing has to be considered. 16. Learned Counsel also relied on the case of Fateh v. Har Bilas 1939 A.W.R. (H.C.) 206. Their Lordships in the course of their judgment no doubt expressed the view that in order to constitute abandonment it was not necessary that the tenant or the ryot should have actually left the village nor was it necessary that the transfer was only by way of a sale. The real point which seems to have engaged their attention, however, was whether a usufructuary mortgage made by a tenant in an agricultural village could within the terms of the tenancy granted by the zamindar, be upheld. The following passage in the judgment is significant on the point: Numerous instances of abandonment of a house are easily conceivable even though the occupier has not actually left the village and gone else where. The argument that the zamindar has a right to sue only if the transfer in question is a sale ignores the principle on which the custom which has been spoken of as the common law of these provinces in the passage quoted above, rests, namely that when a zamindar allows a person to build a house on his land he is entitled to insist that that person and the members of his family alone should occupy that house and that they should not be entitled to transfer the house and thus force a stranger on the zamindar. In our opinion, a usufructuary mortgage also is a transfer of kind which the law does not permit occupiers of houses standing on the zamindar's land to make. 17. It is thus the right of the mortgagor to mortgage the house in an agricultural village that engaged the attention of the Bench in the light of the terms of the tenancy between him and the zamindar. The abstract question of abandonment as following from a gift made by a tenant with the incidence of the donor remaining in possession of the house up to the end of his limitation was not before the Bench in that case. I do not think that this case in any way affects the rule laid down in the subsequent case in Babu Ram v. Mohammad Hasan Khan 1943 A.W.R. (H.C.) 14. I have already cited. 18. The last case relied upon by Mr. Gaur was AIR 1942 108 (Nagpur) . That case was concerned more with the question as to what are the consequences of abandonment than what abandonment is. Surely the question arising in this case never arose in that, nor does that case in any way affect the view I have taken. 19. On a consideration of the above case law, I have come to the conclusion that Narotam Das has not abandoned the shop as a result of the gift he made in favour of Jahangiri Mal, nor did such a gift in any way affect the right of the Plaintiff Appellant to claim possession over the house as the daughter of Narotam Das. 20. In this view of the case, I am unable to affirm the decision of the lower appellate Court and accordingly allow this appeal, set aside the decree of that Court restore the decree of the trial Court and decree the Plaintiff's claim with costs through out. 21. Leave to appeal under the Letters Patent is granted.