The court interpreted the provisions of the Tenancy Act to determine the rights of the landlord and the tenant's transferee in the case of a transfer of holding without the landlord's consent.

Hallifax—All the facts that require consideration in this appeal can be stated in a few words. In 1902 an absolute occupancy tenant mortgaged a quarter share in his holding of about sixteen acres without the consent of his landlord. The rent of the holding was Rs. 28-4-0. The mortgagee obtained a decree for fore-closure and in 1916 in execution of that decree a plot of four acres was demarcated from the holding and the mortgagee was put in possession. The plot is recorded in the Jamabandi of 1916-17 immediately after the settlement as his separate absolute occupancy holding on a rent of Rs. 9, The malguzar in this suit claims to eject the transferee as a trespasser and to reenter on the ground that the transfer is void as against him under S. 41 (7) of the Tenancy Act of 1898.

2. My learned brother Macnair who decided the appeal as District Judge adopted the reasoning in an unreported judgment of Sir Henry Drake Brockman, J.C. in Lachman v. Gangapuri S. A. 203 of 1905 and also the ruling of the Calcutta High Court in Icharan Singh v. Nilmoney Balidar,1908 35 CalWN 636. which is a case from the Sambalpur District governed by Central Provinces Tenancy Act. Lachman v. Gangapuri refers to the sale of a defined and demarcated half of his absolute occupancy holding of 24 acres by one Balaji without the land-lord's consent and the learned Judicial Commissioner said :

In second appeal the only point pressed is that the transfer of 12 acres gave the landlords no right of entry. On the other side the contention is that Lachman being a mere trespasser should be ejected, the interest of Balaji being adequately protected by S. 41 (8) of the Tenancy Act, 1898, which will enable him to recover the land, if he choose to do so. I think the case should be decided with reference to the principle that in order to maintain an action of ejectment a plaintiff must be entitled to immediate entry and possession and that before a landlord can eject his tenant's transferee he must prove abandonment by the tenant: see Bhola v. FMku,1902 15 CPLR 17. Balaji's holding is one and indivisible; it is not alleged that he has refused to pay the rent of the whole; and he cannot be said to have abandoned the holding while still in possession of part.

In Bansi Das v. Jagdip Narayan, 1897 24 ILR(Cal) 152, the facts were similar to those now under consideration in that part of a holding was transferred and the claim was for khas possession of the transferred part only. Beverley and Travelyan, J J., held that whether or not the entire holding was transferable alienation of part would not work a forfeiture. Sheik Gataffur Hossein v. Dablish,1896 1 CalWN 162 was a case where part of a non-transferable holding was transferred, and the same two Judges declined to allow the landlord to recover the entire holding; but Durga Prasad Sen v. Doula,1894 1 CalWN 160 is precisely in point. I may mention here that the judgments of (i) Rampini, J. and (ii) Petharam, C. J., and Macpherson, J., referred to at page 161 of the case last cited will be found reproduced on page 155 of 2 C.W.N. (N.)

3. The landlords' interests are safe guarded by recognizing their right to sue the original tenant Balaji for the rent of the entire holding : if he fails to pay, S. 43 of the Tenancy Act will enable them to sell the holding, and the sale could no more be opposed by Lachman than it could be by one who had taken the whole under as invalid conveyance. Nor can the provisions of S. 42, of the Act be overlooked, they protect an absolute occupancy tenant from ejectment by his landlord as such '' for any cause.''

4. The same interpretation was put on the similar words used in S. 43 of the Tenancy Act of 1883 in 1 char an Singh v. Nilmoney Balidar through the case of an occupancy tenant may possibly now be different in this respect from that of an absolute occupancy tenant through the introduced by the Acts of 1898 and 1920. In the pre-sent case it cannot be said that the tenant has abandoned even th