Patna High Court
Sadhu Sao Minor By Father And Gaurdian ... vs Awadh Bihari Saran Singh And Ors. on 8 April, 1925
Equivalent citations: 89IND. CAS.802, AIR 1926 PATNA 71
JUDGMENT Das, J.
1. This appeal is on behalf of the defendants and it arises out of a suit instituted by the plaintiffs-respondents for recovery of possession of certain kasht lands specified in the plaint. The Court below have differed in opinion, the learned Subordinate Judge in the Court below having given the plaintiffs a decree substantially as claimed by them.
2. The admitted facts are as follows: Defendant No. 2 had a holding under the plaintiff in Tauzi No. 2299. He executed a usufructuary mortgage in favour of defendant No. 1 and put him in possession of the entire holding. There was a controversy in the Court of first instance on the question whether the document executed by defendant No. 2 in favour of defendant No. 1 was one of mortgage or one of sale. Both the Courts below have concurrently come to the conclusion that the document was one of mortgage. The plaintiff contends that defendant No. 2 has abandoned the holding by executing the usufructuary mortgage in favour of defendant No. 1 and by giving up possession and ceasing to pay rent. It appears, however, that the defendant No. 2 is a resident of Mauza Kalapur and that he has three holdings in Kalapur, one in Tauzi No. 4353, one in Tauzi No. 2699 and one in Tauzi No. 4365. We are concerned in this litigation with the holding in Tauzi No. 2699; but it, is not disputed-before us that the tenant is still in possession of two other holdings, it is true, under different landlords, but in the same village. The holding with which we are concerned in this litigation consists entirely of agricultural lands and as the learned Subordinate Judge has found there is no house which forms part of the holding. But the holding in Tauzi No. 4366 consists of a house and a plot of agricultural land; and it is not disputed before us that defendant No. 2 is still in occupation of his house in village Kalapur, Tauzi No. 4366.
3. The conclusion at which the learned Subordinate Judge as arrived may be stated in his own words: -
In the present case, the tenant parts with possession of his holding, without arranging for payment of rent to the landlord by himself. He has his homestead and holdings under other landlords, and has abandoned the holding in the only way in which he can give effect to his "intention to abandon the holding, namely, by ceasing to cultivate and omitting to pay rent. In these circumstances, I am of opinion, that" there has been an abandonment, and I hold that the appellant must succeed."
4. It is settled law that where the transfer is by way of usufructuary mortgage, the landlord, though he has not consented,' is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy. It is not contended in this case that there has been either a relinquishment of the holding or & repudiation of the tenancy; but it is strongly contended on behalf of the respondents that there has been an abandonment within the meaning of Section 87 of the Bengal Tenancy-Act. But as has been held in this Court the first condition to constitute abandonment under Section 87 of the Bengal Tenancy Act is the voluntary abandonment of his residence by the raiyat. In this case it is not disputed that the tenant has not abandoned his residence. The learned Subordinate Judge in the Court below has taken the view that abandonment of the residence must, mean abandonment of his residence under the same landlord, so that where a tenant has not any residence under the landlord who is seeking to recover possession of the holding, it is sufficient for the landlord to prove that the tenant has not arranged for payment of his rent as it falls due and has ceased to cultivate his holding either by himself or by some other person. The learned Subordinate Judge points out that if any other construction were placed on the words of Section 87 "there will be the anomalous position that there can be no abandonment by a non-resident tenant, that is to say, a tenant who does not reside in the village in which he has his holding" and the learned Subordinate Judge comes to the conclusion that the holding and the house of the tenant must be under the same landlord.
5. With all respect I am unable to agree with this view. The question is one of for future, and there is no injustice in requiring a case of forfeiture to be strictly proved. The essence of abandonment is the giving up of the residence without notice to the landlord. I confess that I do not appreciate the difficulty that seems to have oppressed the learned Subordinate Judge. He says that any other construction would involve the consequence "that there cannot be an abandonment by a non-resident tenant", and he points out that "there is no point in giving notice of abandonment to a person under whom the house is held, when the holding is held under a different landlord." But Section 87 does not provide for any notice to be given to the landlord; it points out the consequence of a raiyat abandoning his residence without notice to his landlord when the abandonment is accompanied by other acts mentioned in the section. "Abandonment of the residence" is an unequivocal act showing an intention not to return, and it is a matter of no consequence that the residence is under a different landlord. In my opinion, the section means what it says, and in order to make out a case of abandonment under Section 87, the landlord must establish, first, that the raiyat has voluntarily abandoned his residence without notice to him; secondly, that he has not arranged for payment of his rent as it falls due, and, thirdly, that he has ceased to cultivate his holding either by himself or by some other person. In the present case the tenant has executed a usufructuary mortgage; but he still resides in the village and the equity of redemption is still vested in him. On what ground can we say that there is abandonment within the meaning of that term as used in Section 87 of the Bengal Tenancy Act?
6. In my opinion the decision of the learned Subordinate Judge is erroneous and I must allow this appeal, set aside the judgment of the Court below and restore the judgment of the Court of first instance. The result is that the suit is dismissed with costs in all the Courts.
Adami, J.
7. I agree.