Sheik Gozaffur Hossein and others vs E Dablish and others

In this case the 2nd party defendant, who holds a jote under the plaintiff, made a transfer of a portion of it to the first party defendant, and the present suit was brought by the plaintiffs, first, for a declaration that such transfer, being without the consent of the landlord, was invalid; and, secondly, to have it declared that, in consequence of this invalid transfer, the second party defendant had forfeited his jote, and that the plaintiffs were entitled to recover possession of it. The first Court gave the plaintiffs a decree for possession of so much of the jote as had been transferred to the first party defendants, but that decree was reversed by the Subordinate Judge, and the suit was dismissed in its entirety.

So far as the prayer for possession of the land transferred is concerned, we are of opinion that the decree of the lower Appellate Court must be sustained. It seems to us clear, from the case of Kabil Sardar v. Chunder Nath Nag Chowdhury ILR 20 Cal. 590 that, in a case like the present, the landlord is not entitled to enter upon the land merely because the tenant has transferred a portion of it, though still in possession of another portion. But we are of opinion that the plaintiffs were entitled to a declaration that the transfer of a portion of the holding which had not been made with their written consent, was not binding upon them, as indeed, is provided by section 88 of the Bengal Tenancy Act. The first party defendants had set up a plea that they had been recognized as tenants of this land by payment of rent, but the first Court found that, although rent had been paid by them, it had been paid by them as sub-lessees of the original raiyat. That finding having been arrived at, we think that the plaintiffs were entitled to a declaration in this case that the transfer was not binding upon them; but, under the circumstances, we think, that each party should bear their own costs in all the Courts.