1. The facts found by the lower Appellate Court are, (1) that there is in the village in which is situate the occupancy holding in dispute a custom whereby rights of occupancy are transferable without the consent of the landlord.
(2) That the occupancy tenant has by kobals, dated 30th July 1896, 14th March 1907 and 27th February 1909, transferred the whole of the land for which he pays rent to the defendants Nos. 1 to 3, defendant No. 4 and defendant No. 5.
(3) That the occupancy tenant has not transferred his house for which he does not pay a rent. He is still in occupation of it.
2. On these findings of facts the lower Appellate Court has given a decree to the landlord in a suit for ejectment. The defendants Nos. 1 to 3 have appealed. The basis of the learned Judge's decision is as follows:--
"Now in Tirthanund Thakoor v. Mitty Lall Misser 3 C. 774 : 1 Ind. Deo. (N.S.) 1076 it is laid down that the existence of a custom by which rights of occupancy are transferable will not justify the tenant transferring different parts to different persons. This is exactly I think what has happened here. Then there is the case of Kuldip Singh v. Gillanders Arbuthnot and Co. 26 C. 615 : 4 C.W.N. 738 : 13 Ind. Dec. (N.S.) 995 which reiterates the same principle; and in a recent Full Bench case [Dayamoyi v. Ananda Mohan Ray 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.)] it was laid down that where there has been transfer of a part only the landlord is not entitled to recover possession of the holding unless there had been (a) an abandonment, (b) a relinquishment, or (c) a repudiation of the tenancy. The decisive test in all these cases really is, has the tenant treated the landlord fairly"
3. There cannot possibly be in this case any question of abandonment under the Bengal Tenancy Act, for the simple reason that the first condition necessary to constitute abandonment under section 87 is the voluntary abandonment of his residence by the raiyat. It is admitted that the raiyat is still in occupation of his homestead lands. On the basis of this occupation it is argued on behalf of the appellants that the whole holding has not been sold. We are not in sympathy with this argument. A holding, as we understand it, is a parcel of lands for which a definite contract for rent has been made and inasmuch as the raiyat's house has been entered in the finally published Record of Rights as belagan, we conclude that there has been no contract for payment of the rent for the house and, therefore, the house is in this case not a part of the holding. We must take it as a basis of our argument that the whole parcel of lands in which the raiyat contracted to pay the rent has been transferred. The case is not distinguishable from that of Thirthanund Thakoor v. Mitty Lall Misser 3 C. 774 : 1 Ind. Deo. (N.S.) 1076. We are asked to note that this decision was of a date prior to the passing of the Bengal Tenancy Act, and that the point of view suggested to us in the present case was not placed before the Court.
4. The principle underlying all suits for ejectment of transferees is not based on the Bengal Tenancy Act, but on the Common Law. The landlord is entitled to enter into possession of all lands secured to the payment of the revenue in which no relationship of landlord and tenant subsists. Where a holding is not transferable by custom, the landlord does not sue to eject the transferor: he sues to eject the transferee and the transferee having acquired against the landlord no title by the transfer has no defence to offer in a suit in ejectment. The case is different when occupancy rights are transferable by custom. The transferee of the whole of an occupancy holding is entitled to set up his purchase as a bar to the landlord's entry. It is settled law that where an occupancy holding is transferable the occupancy right passes with the transfer. We may concede that an occupancy right may be sold to two persons jointly purchasing and that immediately after transfer the joint purchasers would be entitled to split up the holding between themselves without prejudice to the landlord's right to regard the holding as still intact and still liable to be sold in its entirety for arrears of rent. We may concede further that the same position would be established if the joint purchasers instead of postponing their partition to the completion of the purchase effect it by separate deeds of sale. The holding in the eye of the landlord would still be intact and still be liable in its entirety for the rent. A trifling difference in the dates of the transfers might possibly be no bar to a defence that the joint purchasers had jointly acquired the occupancy right.
5. In the case before us the difference in the dates of the first and second transfers is thirteen years, and between the second and the third two years. It is urged on behalf of the respondents that this long interval between the transfers is conclusive that there was no joint purchase of the holding and that, therefore, no joint purchase can be pleaded and that it being a well-recognised principle that a transfer of a part of a holding is not a valid transfer the appellants have no defence to the action in ejectment. For the appellants reliance is placed upon the decision in Suraj Deo Narayan Singh v. Pachh Naraian Singh 39 Ind. Cas. 98 : 2 P.L.J. 225 : 1 P.L.W. 443. There is nothing in that case to support the appellants' argument. The learned Chief Justice expressly stated at page 228 Page of 2 P.L.J.--Ed,:--"It has neither been pleaded nor proved that an occupancy tenant is entitled to transfer his holding or the greater part of it piecemeal and call upon the landlord to recognise the different transferees or recognise any division of the holding."
6. In that case the whole holding had not been transferred. The plaintiffs sued on the basis of a partition which made them the sole landlords of the part that had been transferred, the part that had not been transferred being allotted to other co-sharers. It was decided, that inasmuch as the landlords as a body before the partition would have been met with a defence that the transferees of the part of the holding were co-sharers with the transferors who had a good title to remain upon the land, the partition could not confer upon one of their number a right which was not possessed by the whole body.
7. An additional difficulty in the way of the appellants is that the whole body of transferees has not joined in the defence. Defendants Nos. 4 and 5 do not contest the landlord's right to enter upon the holding. Granting for the sake of argument that the whole body of transferees could have pleaded a joint right to remain upon the land (a proposition which we view with distrust), we should have still to consider whether one of the three transferees can plead that right alone. The ratio decidendi in the case of Tirthanund Thakoor v. Mitty Lall Misser 3 C. 774 : 1 Ind. Deo. (N.S.) 1076 is present in the case before us. The learned Judge has found, it is true, that there is a custom by which occupancy rights are transferable without the consent of the landlord. He has not found, and there is not a particle of evidence on which he could have found, that parts of holdings are transferable. The learned Subordinate Judge has shown clearly that in the cases in which a portion of a holding has been transferred, no rent receipts have been produced to show that the transfers were recognised.
8. A raiyat may have a saleable interest in his entire holding. He has no saleable interest as against the zamindar in a part of it only. The appellants acquired no title as against the zamindar by the purchase of a part of the holding. They have, therefore, in themselves alone no title which they can plead as a bar to the landlord's suit in ejectment. We see no reason to doubt the correctness of the decision in the case of Tirthanund Thakoor v. Mitty Lall Misser 3 C. 774 : 1 Ind. Deo. (N.S.) 1076.
9. The appeal is dismissed with costs.
