1. This is an Appeal by the second Defendant in an action inejectment. The subject-matter of the litigation consists of nine parcels ofland, which, the Plaintiff alleges, are comprised in a tenancy held by thethirteenth Defendant under him. The case for the Plaintiff is that in 1903 thetenant unlawfully transferred a portion of the holding to the contestingDefendants, that thereafter, on the 27th May 1908, the tenant surrendered theholding in his favour, and, that consequently, he is entitled to recoverpossession thereof. The Court of first instance found with regard to two of theplots, namely, the first and the thirds that they were not included in thetenancy of the thirteenth Defendant. As regards the surrender, the Court foundthat it was fictitious, as notwithstanding the execution of the deed ofrelease, the tenant had continued in occupation of the remainder of the land.In this view, the Court of first instance dismissed the suit. Upon appeal, thatdecree has been reversed by the Subordinate Judge. On the question of thegenuineness of the surrender, the finding of the Subordinate Judge isambiguous. He states that even if the deed be collusive and intended to cheatthe transferee, the latter has his remedy against the transferer. In the opinionof the Subordinate Judge the Plaintiff is entitled to re-enter even thoughthere has been no real surrender in his favour. The second Defendant has nowappealed to this Court, and on his behalf the decree of the Subordinate Judgehas been assailed on two grounds, namely, first, that the Plaintiff cannotsucceed inasmuch as there is no real surrender in his favour; and, secondly,that the Plaintiff is not entitled to reenter, because even if the surrenderrepresents a real transaction, it does not affect the interest or prejudice theposition of the transferee. In so far as the first point is concerned, it isplain that the Subordinate Judge has not reversed the clear findings of theCourt of first instance. That Court found that notwithstanding the execution ofthe deed of surrender, on the 27th May 1908, the tenant has continued inoccupation of the homestead and a portion of the remaining land of the tenancy.That finding is not displaced by the Subordinate Judge. On the other hand, theSubordinate Judge holds that the tenant, no withstanding the execution of thedeed of release , has continued in occupation with the permission of thelandlord. In our opinion, there is no room for doubt that the alleged surrenderwas collusive. It has been argued, however, that even if the surrender wascollusive, the Plaintiff is entitled to reenter. We are of opinion that thereis no foundation for this contention. If the surrender was collusive, thetenancy of the thirteenth Defendant has not yet terminated, and, so long asthat tenancy subsists, the Plaintiff is not entitled to eject the transferee.It has been ruled in a series of cases of this Court, amongst which may bementioned those of Chandra Mohun v. Bisseswar 1 C.W.N. 158 (1892), Durga ProsadSen v. Doula Gazee 1 C.W.N. 160 (1894) and Kabil Sardar v. Chandra Nath NagChowdhury I.L.R. 20 Cal. 590 (1892), that as long as the tenancy subsists, thelandlord is not entitled to eject the transferee of a portion of the holding.The first ground must consequently succeed.

2. In so far as the second ground is concerned, reliance hasbeen placed by the Respondent upon the case of Tamizuddin Khan v. Khoda NawazKhan 14 C.W.N. 229(1909) to show that a purchaser of a portion of a holding isnot protected under sub-sec. (6) of sec. 86 of the Bengal Tenancy Act. In theview we take of the rights of the parties with reference to the first questionraised before us, it is not necessary to decide whether the case of TamizuddinKhan v. Khoda Nawaz Khan 14 C.W.N. 229(1909) furnishes a correct exposition ofthe law. We may point out, however, with regard to that decision that there areat least four points which require consideration. In the first place, thelearned Judges adopted, for the purposes of the interpretation of sec. 86 whichfinds place in Chap. IX of the Bengal Tenancy Act, the definition of the termincumbrance given for the purpose of Chap. XIV alone. In the second place,the decision of this Court in the case of Chandra Sakai v. Kali Prasanna I.L.R.23 Cal. 254 (1895), shows that an exchange is an encumbrance within the meaningof sec. 161 of the Bengal Tenancy Act, and in relation to the question raisedbefore us, there does not appear to be any real distinction between an exchangeand a sale. In the third place, the effect of the decision is to place thepurchaser in a worse position than a mortgagee or lessee under sub-sec. (6) ofsec. 86. In the fourth place, it may be a question, whether there can be asurrender effective for the purposes of sec. 86 when the conditions mentionedin sub-sec. (5) cannot be fulfilled. But as we have already said it is notnecessary for us to determine, whether the case of Tamizuddin Khan v. KhodaNawaz Khan 14 C.W.N. 229 (1909) was correctly decided, and we reserve ouropinion upon the question involved in that litigation.

3. It has finally been urged that the case of Gagan ChandraChowdhury v. Alek Chand Saha 17 C.W.N. 698 (1913) assists the contention of theRespondent. That case, however, is clearly distinguishable. There, it was ruled,upon the authority of the earlier decisions in Badan Chandra Das v. RajeswariDebya 2 C.L.J. 570 (1905) and Rajendra Kishore Adhikari v. Chandra Nath Dutt 12C.W.N. 878 (1907), that when there has been a surrender of a part of a holdingby a tenant the landlord is entitled to re-enter, even though he is aware thatthere is some one else in possession claiming under a title derived from thetenant. But it has been overlooked by the learned Vakil for the Respondent thatin Gagan Chandra Chowdhury v. Alek Chand Saha 17 C.W.N. 698 (1913), there wasno encumbrance secured by a registered instrument within the meaning ofsub-sec. 86. The result is that this Appeal is allowed, the decree of the lowerAppellate Court set aside and that of the Court of first instance restored.This order will carry costs, both here and in the Court of Appeal below.

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Askar Ali vs. Goupee Mohan Chowdhury and Ors. (05.06.1913 -CALHC)