The main legal point established in the judgment is that the concept of abandonment, relinquishment, and repudiation of tenancy under the Bengal Tenancy Act must be strictly interpreted, and the landlord's claim for khas possession against a transferee must be based on legal grounds.

JUDGMENT

Rankin, J. - In this case, the landlord sues the transferee of a non-transferable occupancy jote for khas possession of the holding. It appears that two tenants Raj Mohan and Sonatan held the suit lands as occupancy raiyats under the plaintiff. In execution of a money decree obtained against the tenants as well as of a mortgage decree obtained against them, the holding was sold to the defendant No. 1 and thereupon the tenants took a tenancy under the transferee, remaining upon their homestead portion which was part of the land of the tenancy and also remaining as cultivators of a certain number of plots being part of the tenancy. In these circumstances, there has been a difference of opinion between the Courts below. The learned Munsif, following Dayamayi v. Ananda Mohan [1915] 42 Cal. 172 has held that, as the tenants on longer pay rent to the plaintiff and as they now claim to hold the home-stead and some plots of land within the jama under the transferee and not under the plaintiff and as there is no independent evidence that the tenants still regard the plaintiff as their landlord, it is clear that there has been an abandonment of the tenancy within the meaning of Dayamayi's case [1915] 42 Cal. 172. He proceeded in theory entirely upon abandonment and as a matter of fact, is the first Court, little, or nothing appears to have been said either about repudiation or about relinquishment. The learned District Judge of Jessore has taken another view. He has treated the case as a question solely of abandonment. He has pointed out that the plaint spoke of abandonment and that there is no allegation of relinquishment or repudiation. He has found that, upon Dayamayi's case and certain subsequent decisions, there is no abandonment and he has, accordingly, as against the transferee, dismissed the suit. There was another defendant against whom the suit was also dismissed. In my opinion that circumstance helps neither party and I do not propose to refer to it again.

2. This is a typical case and one constantly coming before the Court. The conditions under which we have to decide it are, I think, these : we are bound by Dayamayi's case; but the decisions previous to Dayamayi's case are not now necessarily binding, upon us. This circumstance is of the less importance that the relevant decisions prior to Dayamayi's case are in almost no simple circumstance consistent or well settled. So far as regards the subsequent cases purporting to interpret Dayamayi's case, we are, I think, bound either to follow those decisions or to refer the matter to a Full Bench. But above and beyond these oases to which I have just very generally referred, we have to remember that there stand the express provisions of the Bengal Tenancy Act. In dealing with this case, I propose to go first to the decision of Dayamayi's case and to examine the state of the authorities applicable to such a case as the present.

3. In the second paragraph in the reported judgment of Dayamayi's case [1915] 42 Cal. 172 to be found in (42 Cal. p 223) the proposition laid down by the Full Bench is in these terms: "Where the transfer is a sale of the whole holding, the landlord in the absence of his consent, is ordinarily entitled to enter on the holding; but where the transfer is of a part only of the holding, or not by way of sale, 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 will be observed that, in both branches of that proposition, occurs the word "ordinarily" and that word by itself shows that the circumstances mentioned in each branch are being : regarded as evidence of, or, as importing reference to, some higher, more precise or more ultimate test. One asks oneself in the present case whether the circumstance that the tenants are s