Authored By : Henry Thoby Princep, Beverley

Henry Thoby Princep and Beverley, JJ.

1. In these two cases the tenant claiming rights ofoccupancy sue, within one year from the date of dispossession, to recoverpossession from their landlords and others to whom their landlords have let theland.

2. It has been found by the lower Court that the tenant inone case has not paid rent for three years previous to the date ofdispossession, while the tenant in the other case has not paid rent for upwardsof five years. It is therefore contended before us that the tenants are notentitled, as tenants having right of occupancy, to recover possession of thelands, because such rights continued only so long as they paid the rent payablefor the lands, and that, inasmuch as they have ceased to pay such rent, theirrights have gone. As an authority for this contention, four cases have beencited. It seems to us, however, that none of these cases goes so far as theargument of the learned pleader for the appellant. The cases, generallyspeaking, go to this extent, that, where there has been an abandonment of thetenure of a ryot hiving a right of occupancy by cessation in the payment ofrent or otherwise, he cannot object to a re-occupation by the landlord as anejectment. In the first case quoted, viz., that of Hemnath Dutt v. AshgarSindar 4 C. 894 it was held that, where the lands had been washed away by theaction of water, and the ryot had ceased to assert any right thereto by paymentof rent, he could not, when the lands re-appeared, claim to be regarded as atenant still holding the rights that he previously had. In the next case, GolamAli Mundul v. Golappe Sundary Dasi 8 C. 612 the tenant did not pay the rent tothe landlord for about five years. The learned Judges held that he was notentitled to sue to recover possession, apparently because he had abandoned thetenure and had ceased to pay rent there for simultaneously. They say that"distinct abandonment and cessation to pay rent disentitle the tenant fromenforcing the rights which he may formerly have enjoyed." In the case ofManirullah v. Ramzan Ali 1 C.L.R. 293 the suit was dismissed because the tenanthad abandoned his holding by allowing another person to occupy the lands andalso to transfer his rights to a third party. It was accordingly held that thisconstituted an abandonment of the tenure on his part. In Hem Chandra Chowdhariv. Chand Akund 12 C. 115 the suit was dismissed, because the plaintiff (tenant)had failed to prove his title as an occupant ryot. It was pointed out by thelearned Judges that, inasmuch as the suit had been brought more than one yearafter the date of dispossession, he could claim to be restored only on proof ofhis title, and it was held on the facts that he had abandoned his holding byceasing to occupy the lands, not only by nonpayment of rent, but by beingabsent in jail during that period. These cases therefore are, in our opinion,distinguishable from the case now under consideration. The argument of thelearned pleader for the appellant would, if conceded, enable a landlord, towhom arrears of rent were due, to re-occupy the lands for which this rent waspayable, and so to eject the tenant without any recourse to the Courts. Thiswould altogether nullify the effect of Sections 22, Beng. Act VIII of 1869,which declares that no ryot having a right of occupancy shall be ejectedotherwise than in execution of a decree or order under the provisions of theAct. If a tenant has abandoned the lands occupied by him, the landlord can ofcourse re-enter, but that is not the case before us. It has been found that theplaintiffs tenants have held these lands as before up to a very short time ofbringing these suits, when they were turned out by their landlord. The merenon-payment of rent under such circumstances would not amount to any forfeitureof the tenure, or in itself constitute any presumption of abandonment of any oftheir rights. It is rather for the landlord, if he seeks to eject occupancytenants on such grounds, to sue them for the rents due and to obtain a decreein terms of Section 52. The appeals are accordingly dismissed with costs.

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Koilash Chundee Dey and Ors. vs. Obhoya Charan Bhoota andOrs. (03.06.1887 - CALHC)