AMINULLA CHOWDHURY Vs. MAHABAT ALI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for ejectment. The subject-matter of the litigation is an under raiyati holding created on the 11th January 1899. In contravention of the term of Section 85 of the Bengal Tenancy Act the raiyat granted a permanent lease to the under-raiyat. The under raiyat continued in occupation for many years on payment of the rent fixed in the lease, Default was thereafter made and in 1911 the raiyat sued the under-raiyat for recovery of arrears of rent. Various defences were taken to the claim. On the 9th August 1911 the parties came to a settlement. One of the terms of the agreement was that the under-raiyat should abandon all opposition to the suit; another term was that on payment of Rs. 25 as premium to the raiyat, the latter should agree to treat the holding as heritable. A decree was drawn up in the rent-suit on the basis of this settlement: and, although the terms of the compromise are not set out in the decree, it is stated explicitly that the decree was made by consent of parties. The premium, of Rs. 25 was made, and the under raiyat continued in occupation till his death early in 1914. On the 9th December 1915 the raiyat instituted the present suit for ejectment of the representatives-in-interest of the under-raiyat. The claim is based on the allegation that the interest of an under-raiyat is not heritable, and that consequently the defendants in occupation are trespassers and a reliable to be ejected. We are of opinion that the claim can not possibly be sustained.

(2.) We shall assume for the purposes of the present appeal, and for that purpose alone, that the lease of the 11th January 1899 was not operative as a permanent lease, even between the grantor and the grantee, because it was granted in contravention of the provision of Section 85 of the Bengal Tenancy Act. We shall further assume that the position of the lessee was that of an under raiyat, who held without any fixed term. The effect of the agreement of the 9th August 1911 was that the raiyat consented to transform the tenancy of the under raiyat into a heritable tenancy. Such an agreement is not in contravention of the terms of Section 85 of the Bengal Tenancy Act. There may be tenancy for nine years or even for a shorter time, which may be a heritable tenancy. Maharaja Tek Chund Bahadur v. Sri Kanth Ghose 3 M.I.A. 261 : 6 W.R.P.C 48 : 1 Suth. P.C.J. 152 : 1 Sar. P.C.J. 278 : 18 E.R. 497, Gobind Lal v. Hemendra Narain 17 C. 686 : 5 Sar. P.C.J. 497 : 8 Ind. Dec. (N.S.) 998. Hedlot Khasia v. Karan Khasiani 13 Ind. Cas. 877 : 15 C.L.J. 241. Kishori Lal Roy v. Krishna Kamini 5 Ind. Cas. 500 : 37 C. 377 : 11 C.L.J. 401. The provisions of Section 85 were in no way violated when the under- raiyat agreed to accept from his landlord a heritable tenancy. The plaintiff raiyat now seeks to obtain relief in contravention of his solemn engagement, although he has taken consideration for the agreement. The previous suit, which was defended by the under raiyat, was decreed in favour of the raiyat without contest on the basis of that compromise, No Court of Equity will now permit him to turn round, to ignore the engagement, to treat the tenancy as if it were not heritable, and to eject the heirs of the under-raiyat as if they were trespassers. The well- known rule in Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109, has been repeatedly followed in this Court, as shown by the long line of cases from Bibi Jawahir Kumari v. Chatterput Singh 2 C.L.J. 348, to Syam Kishore De v. Umesh Chandra 55 Ind. Cas. 154 : 31 C.L.J. 75 : 24 C.W.N. 463, and is applicable here. The raiyat must be deemed to have honestly carried out his engagement, namely, executed valid document whereby a heritable right was conferred on his under raiyat. This is only an illustration of the principle that where B. agrees to let land to A. who takes possession and the agreement is one of which specific performance would be granted, A. and B. have the same legal rights and liabilities as between themselves, as if a lease had been executed, provided the rights of third parties are not affected. In this view, it is impossible for the plaintiff to maintain the suit, which has been rightly dismissed.

(3.) We need not examine the validity of the grounds which form the basis of the decision of the District Judge: nor need we express an opinion on the question whether the tenancy of the present defendants is or is not terminable by notice under Section 49 of the Bengal Tenancy Act,