Ramjanum Singh and Others vs Babu Khub Lal Singh and Others and Babu Sarjug Prasad Missir and Others

Das, J.—This was an action by the plaintiffs-respondents for recovery of possession of certain lands which are specified in the plaint. The suit was resisted mainly by the appellants before us on the ground that they have taken a kabala of the major portion of the lands in suit. It is necessary to state that the defendants, who are the appellants before us, have taken the conveyance from one Behari Missir whose heirs ''were cited in the action as defendants third party.

The plaintiffs brought the action on the allegation that the defendants second party were their tenants; that the defendants second party having abandoned the land they were entitled to recover Mat possession of the land.

The case of the defendants is, that the defendants second party had nothing whatever to do with the land; that one Behari Missir was the tenant in respect of this land, and that the contesting defendants, who are the appellants before us, have taken a conveyance of the major portion of the lands from the heirs of Behari Missir.

The lower Appellate Court has found that Behari Missir was the benamidar of the defendants second party; that it was the defendants second party who were the tenants in respect of this land; that the defendants second party were in possession of the land until the 17th December 1915 when they executed a ladavi deed in favour of Behari Missir, and that since the 17th December 1915 the defendants first party are admittedly in possession of the major portion of the holding. But the conveyance in favour of the defendants first party did not include 16 kathas of land which was admittedly a portion of the holding and with reference to this 16 kathas the learned Judge has said as follows:

It is of no concern to us to ascertain as to who is in possession of the 16 kathas and odd out of the disputed holding when the defendants second party ant off his connection with the whole of the holding by executing the ladavi deed.

It seems to me that a case u/s 87 of the Bengal Tenancy Act is not established by the findings arrived at by the lower Appellate Court its finding that the defendants second party out off their connection with the whole of the holding was a finding based not on the evidence in the case but on its view of the ladavi deed. If it was based on the evidence in the case, it would have been in a position to record a finding that the defendants second party were not in possession of the 16 kathas of land. Now, it is perfectly clear that, in order to succeed u/s 87 of the Bengal Tenancy Act, the plaintiff must establish, first, that the raiyat voluntarily abandoned his residence without notice to his landlord, secondly, that he did so abandon his land without arranging for payment of his rent as it fell due; and, thirdly, that be ceased to cultivate his holding either by himself or by some other person. The learned Judge has not considered any of these three points at all, and it is essentially necessary that, before he gives any reliefs to the plaintiff, he must consider the evidence in the case with reference to Section 87 of the Bengal Tenancy Act.

I must allow this appeal, set aside the judgment and decree of the Court below and remand the case to the lower Appellate Court for a decision according to law. The appellants are entitled to the costs of this appeal; the costs incurred in the Court below will abide the result and will be disposed of by the lower Appellate Court.

Adami, J.

I agree.