Wort, J.This appeal arises out of an action in which the plaintiff claimed a declaration that he had a permanent jote jama right in half of the lands described in one of the schedules to the plaint and for an order for possession of that share and for possession of half share of the other land described in the same schedule.

2. The circumstances under which the case arose were these: One Khudu Mahatani possessed raiyati interest in a certain property in which were two tanks. On some date in or about 1894 there was a money decree against Khudus husband. The property was put up for sale and was purchased by the landlord Mohar Mia. After this sale and about the year 1900 the landlord Mohar Mia granted a settlement to the widow Khudu of the same land. About six years after that date the widow sold the tanks which are in dispute in this action to defendant 2. Then Khudu died leaving two sons one of whom I shall describe as the elder and the other younger son, and the younger son shortly afterwards surrendered his interest in the land to the landlord. The plaintiff took settlement of this half-share surrendered by the younger son.

3. The plaintiff in those circumstances brought this action for the relief which I have stated. Before the learned Munsif the plaintiff succeeded in his action, but when the matter came before the learned Subordinate Judge the result of his decision was that the suit of the plaintiff was dismissed and hence this appeal.

4. The contention of the learned advocate on behalf of the plaintiff is this that as a result of the surrender by the younger son of his interest in the land and the settlement to him the plaintiff is entitled to get joint possession of the tanks in dispute. The question depends upon the effect of the surrender of the younger son. It seems to me perfectly clear as this comes from Manbhum District that the Act which applies is the Rent Act, 1859 (Act 10 of 1859). But even assuming for the moment that the Chota Nagpur Tenancy Act applies to the case, the position of the plaintiff, in my judgment, would be no better. Section 72, Chota Nagpur Tenancy Act, gives the right to the tenant to surrender his whole holding, it being as I have stated a statutory right to surrender. Sub-section 5, Section 72 provides that nothing in the section shall affect any arrangement by which a raiyat and his landlord may arrange for a surrender of the whole or a part of the holding. Sub-section 4 provides that when there has been a surrender of the whole holding the landlord may enter on the holding and either let it to another tenant or take it into cultivation himself.

5. Now the point in substance is this: whether in the events which have happened the surrender of half of the land, that is the interest of the younger son, the landlord is entitled to re-enter. The section to which I have referred recognizes that right of re-entry only in the case of a surrender of the whole holding. The Rent Act of 1859 makes no provision similar to that provided by Sub-section 5, Section 72, Chota Nagpur Tenancy Act; in other words that the tenant has the right to surrender a part of his holding. But quite apart from the statutory law, if is perfectly obvious that in the case of a surrender of part of the holding only, the relative position of the parties depends upon contract. In this case it is argued having regard to the relief which is sought in the case that the landlord is entitled to re-enter and therefore entitled to settle with the plaintiff ignoring the interest of defendant 2 in the tanks.

6. The learned advocate who appears on behalf of the appellant relies upon two cases, the first being the case of Ram Oraon v. Doman Kalal AIR 1924 Pat. 100. That was a case in which there had been first the mortgage of a part of the holding and then a second mortgage of the other part with the exception of the homestead land. Now the conclusion at which Jwala Prasad and Ross, JJ., came in that case was that in those circumstances when there was a subsequent surrender of the whole holding with the exception of the homestead land, the two mortgages can be avoided. The decision is based on two facts. The case first of all was based on the assumption that it was a surrender of the whole holding and second the mortgages which had been brought into existence were mortgages for a period exceeding five years could be avoided.

7. The next case which was relied upon was the case of Mt. Sheoraji Kuer v. Dhani Mian AIR 1924 Pat. 1 . The same question came up for consideration, but there again the basis of the decision was that it was a surrender of the whole holding. The learned advocate who appears on behalf of the appellant relies upon a passage in the judgment of Mullick, J., in which he says:

With regard to the surrender of a part of the holding Section 86 (this is Section 86, Ben. Ten. Act) shows that the right of surrender in this case is conditional on the landlords consent; but once the landlord does consent the position is the same as in the case of the surrender of the entire holding. In effect the surrender of a portion of the holding, whether it be of the portion already transferred or of the other portion, entails a surrender of the entire holding;

but he adds towards the end of that passage:

The landlords right of re-entry is based upon the view that the transfer of the entire holding by sale constitutes abandonment. I take it that the sale of a portion and the surrender of the rest has the same result.

8. The learned advocate who appears on behalf of the appellant relies upon these observations and contends that the effect of the surrender of the part is the same as the surrender of the whole. But even assuming that that was what the learned Judge intended to say, it is quite clear from the facts of the case that the case was one of surrender of the whole holding, therefore to that extent those observations of the learned Judge were mere obiter and not binding on this Court. It seems to me quite clear and no argument has been advanced by the learned advocate which would in any way shake that proposition of law, namely, that in order to re-enter there must be surrender of the whole holding and without that right of reentry, the rights of defendant 2 in this case could not be affected. It is quite clear in this case that what has been surrendered is a portion of the holding only and therefore the right of re-entry on the part of the holding did not exist.

9. For those considerations, it seems to me that the decision of the learned Sub-ordinate Judge is right and the appeal should be dismissed with costs.

Mohamad Noor, J.

10. I agree. In my opinion there is a good deal of difference between the surrender of an entire holding and the surrender of a portion of the holding. Surrender of an entire holding without the consent of the landlord is a statutory right given to a raiyat, and therefore the statutory consequences will follow and one of them is this: that the occupancy right comes to an end and the landlord is entitled to re-enter upon the land disregarding all the acts done by the late raiyat. The surrender of a part of the holding is a matter of contract between the landlord and the raiyat and it cannot be done except by mutual agreement and when this is so, it is obvious that the landlord and tenant by coming into an agreement among themselves cannot defeat or destroy the right of a third person and the equitable doctrine that a person cannot be allowed to derogate from his own grant applies in this case. It will not be proper to base the decision of the case of a part surrender on the principle which underlies the surrender of an entire holding. For this reason I agree that the appeal be dismissed with costs.