Cuming, J.@mdashIn the suit out of which this appeal has arisen the Plaintiffs sued for a declaration of their brahmattar right to the disputed land and for recovery of khas possession thereof after evicting the Defendants. The Plaintiffs'' case was that the pro forma Defendants who had held the land under them in raiyati right had abandoned it without making any provisions for the payment of rent. The Plaintiffs bad come to know that the pro forma Defendants had sold the land to the principal Defendants. As the pro forma Defendants had no right to transfer without the consent of the landlords the Plaintiffs as landlords claimed to re-enter upon the land. The defence was that the whole jama had not been transferred, that the pro forma Defendants were still in possession, that they had tendered rent to the Plaintiffs from time to time, and further that the sale was not an out and out sale but made with the condition attached, that in case of payment of the price within 7 years the property would be re-conveyed to the pro forma Defendants and further that the sale was made with the consent of Plaintiff No. 1.
2. The trial Court held that the pro forma Defendants had not abandoned the land. Hence he dismissed the Plaintiffs'' suit.
3. The Plaintiffs appealed to the District Court and the learned Subordinate Judge decreed the appeal and the Plaintiffs'' suit with costs. He held that the pro forma Defendants had abandoned the land without making any provision for the payment of rent, that the pro forma Defendants had no transferable interest in the land and that therefore the Plaintiffs had a right to re-enter.
4. The Defendants, the purchasers, have appealed to this Court. In appeal two points have been argued. First, that the purchase was made with the consent of the landlords, and the lower Appellate Court has not considered this point. As far as can be seen this point was not argued before the lower Appellate Court. The trial Court in dealing with this point stated that the Plaintiff No. 1 had not denied that the purchase was with his consent and the trial Court seems to think that it was for the Plaintiff No. 1 to examine himself and to prove that the purchase was not made with his consent. On the contrary it was for the Defendants to prove that the purchase was made with the consent of the Plaintiffs, and, it they desired, to examine the Plaintiff No. 1 on this point. It was for them to summon him as a witness or to examine him on commission. Probably for this reason the point was not urged in the lower Appellate Court. There is nothing in this contention.
5. The next point argued was that the transaction was really a mortgage by conditional sale. This point again does not seem to have been argued before the lower Appellate Court; and probably for a very good reason, for the kobala itself does not show that it was a mortgage by conditional sale, but prima facie it is an out and out sale.
6. This appeal is really concluded by the findings of fact arrived at by the lower Appellate Court. The lower Appellate Court has found that the Defendants have sold the land and have made no arrangement for the payment of the rent. As the learned Judge points out if they really desired to pay the rent they could have sent the rent by postal money order or have made a deposit in Court. Clearly they did not make any attempt to pay the rent or any arrangement for making the payment of rent. He also finds that the principal Defendants are in possession. It is not necessary to prove as a fact that the holding has been abandoned but it is a direct inference from the fact that the entire holding was sold and possession given to the purchaser. See the case of Sheikh Chand Pramanik v. Romoni Mohan Roy (1912) 17 C. W. N. 1105. The facts proved are sufficient to justify the lower Appellate Court''s finding that the pro forma Defendants have abandoned the lands. This being so, the Plaintiff''s clearly have a title to re-enter.
7. The appeal therefore fails and is dismissed costs.
8. The crass-objection not being pressed is also dismissed.
Chakravarti, J.
I agree.
