Ram Lal Mandar vs Kuldip Narayan Tewari

Facts.--Certain recorded tenants of the landlord of two holdings executed usufructuary mortgage in favour of plaintiff in the year 1916. About this time the landlords brought a suit for rent against the recorded tenants and put up the properties to sale, and after purchasing these properties dispossessed the plaintiffs by force at the time of taking delivery of possession in pursuance of the sale.

Plaintiffs consequently filed this suit in 1918 for a declaration as to the validity of the usufructuary mortgage, as to the illegality of their dispossession by the landlords, and as to the collusive nature of the rent suit. They also sought for the recovery of the actual possession of the land.

Plaintiffs also pleaded that u/s 167 of the Bengal Tenancy Act the landlords were bound to annul the incumbrance within the prescribed time which they have failed to do and hence the landlords were not entitled to treat the encrumbrance as void.

The landlords denied the validity of the mortgage and the actual possession of the mortgagees. They also pleaded that the encumbrances were annulled u/s 167 of the Bengal Tenancy Act within one year of their getting the knowledge of the plaintiffs'' encumbrance. The Court of first instance found all the issues in favour of the plaintiffs but the appellate Court found that there was abandonment by the tenants apart from Section 87 and hence the landlords were entitled to re-enter upon the property. The District Judge (the appellate Court) held that the plaintiffs were in possession until dispossessed by the landlords and that the mortgage was a bona fide mortgage under which plaintiffs got possession, but that they did not pay rent for three years prior to the rent suit.

Dawson Miller C.J.

[After stating facts his Lordship continued:]

The only question for consideration in this appeal is whether or not upon the facts found by the learned District Judge he was entitled to arrive at the conclusion that there was an abandonment. In other words could he properly say, where the tenant of a non-transferable occupancy-holding has mortgaged his holding under a usufructuary mortgage and has put the mortgagee in possession and thereafter ceased to pay his rent, although he has not left his residence in the village, that the tenant has abandoned his holding. In support of this proposition the case of Samujan v. Munshi Mahaton 4 C.W.N. 493 was relied upon. That however, was a case where the raiyat had sold his non-transferable holding and was no longer in possession of the same and paid no rent and in such circumstances it was found that he had in fact abandoned the holding to his landlord. There is, however, to my mind, a great distinction between the case of an out and out sale where the tenant purports to transfer ail the interest he has and the case of a usufructuary mortgage where the tenant at all events retains the equity of redemption and may within a short, period of the execution of the mortgage recover the property back by payment of the sum advanced. The case of Monohar Pal v. Ananto Moyee Dassee 17 C.W.N. 802, decided by the Calcutta High Court, was also relied upon by the respondents in support of the learned District Judge''s decision. The facts of that case were certainly more similar to the facts found in the present case. That was an appeal from an appellate decree. The question was whether the Lower Appellate Court was entitled, upon the facts proved before it, to arrive at the conclusion that the tenant had in fact abandoned his holding. The facts proved were that a usufructuary mortgage had been granted by the tenants for a certain number of years. The mortgagees had continued in possession of the land through their burgadar, even after the expiry of the term, and the raiyat had left the village and no longer lived there and had in fact cut off all connection with the holding. The Judge of the first Appellate Court, upon these findings, arrived at the conclusion that there had been an abandonment and the High Court in second appeal refused to disturb that finding. It was pointed out in that case that Section 87 of the Bengal Tenancy Act was not exhaustive as to the rights of the landlord in the case of abandonment that it only provided for the rights of the landlord under the particular circumstances referred to in that Section but that if in fact there was an absolute abandonment of the holding, apart altogether from that section, then no doubt the landlord was entitled to re-enter and annul incumbrances such as that granted in that case. The Court pointed out that the question for determination was 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 a higher'' tribunal on second appeal, and as there was a definite finding that the tenant no longer lived in the village and further that, he had not got any connection with the jote in suit, which meant in the opinion of the Court that his interest in the jote had ceased, the Court came to the conclusion that it could not disturb the finding of fact. It seems to me that in the present case the facts are entirely different. The tenant, it is true, has granted a usufructuary mortgage but he has not parted with his entire interest in the property and there is abundant authority for saying that the mere fact that he has granted a usufructuary mortgage over the whole property does not in itself entitle the landlords to re-enter. He has not in this case left the village or abandoned his residence. He still resides there and although he has not paid the rent it does not seem to me that the facts established in this case are sufficient to entitle the Court to arrive at the conclusion that, as a matter of law, there has been an abandonment of the holding. The learned District Judge in dealing with the facts after pointing out that it was the plaintiffs'' case on the evidence that the tenants, even after the mortgage, still continued to cultivate a portion of the land and that it was the defendants'' case upon their pleadings and their evidence that the tenants had all along been in possession and the mortgagees never had been in possession, nevertheless arrived at a finding of fact that the mortgagees had been in possession of the whole property from the time of their mortgage and that no portion of it had been cultivated by any of the tenants. I am not sure how far he was entitled to arrive at a conclusion of fact which was not the case made in the evidence either by the plaintiffs or by the defendants and his findings on that question are not definite although I have no doubt he intended to arrive at the conclusion that the whole of the property was cultivated by the mortgagees after the execution of the mortgage bond. He gave reasons for supposing that this was probably the truth of the matter. It is, however, not necessary to consider that question further because, in my opinion, there was no evidence upon which he could properly come to the conclusion that there had been an abandonment in this case. I agree that, apart from Section 87 of the Bengal Tenancy Act, there may be an abandonment of a holding but I consider that in such a case it must be proved either that the tenant has transferred his whole interest in the property and ceased to take any further interest therein, as for example by a sale of the whole property, or that he has abandoned the right to retake possession in future or has either left the village without any intention of returning or done some other act which would clearly indicate that he no longer retained the spes recuperandi. In the present case the fact that he had mortgaged the property under a usufructuary mortgage and had given entire pessession to the mortgagees continuing himself to remain in the same village to my mind affords in itself no evidence from which it can be inferred that he had entirely abandoned his rights in the property and had, no intention of even redeeming the mortgage and retaking possession. The result, therefore, is that the learned District Judge''s finding on this point cannot, in my opinion, stand.

The learned District Judge having decided the case in favour of the defendants upon the point which I have just mentioned did not proceed to consider the question of fact raised by issue No. 12, namely, whether the incumbrance had been duly annulled. It was the defendants'' case that the provisions of Section 157 of the Act had been complied with. Whether they had or had not depended upon questions of fact, these facts were not considered by the learned District Judge. It will be necessary, therefore, before this case can be finally disposed of, that a finding should be arrived at upon that question. The result will be that the decree of the learned District Judge dismissing the suit will be set aside and the case will be remanded to him to try that part of issue No. 12, upon the facts, which relates to the question of whether the incumbrance had been duly annulled or not. There may have been other issues which were material to the decision of the case which were not considered by the learned District Judge but they have not been brought to our attention. If there are any such issues then the parties will be entitled to raise them before the learned District Judge on remand. We think that the plaintiffs are entitled to the costs of the appeal to this Court. The costs of the trial Court and of the appeal to the District Judge will abide the ultimate result of the suit.

Mullick, J.

I agree.