CHANDRA KANTA NATH Vs. AMJAD ALI HAZI

JUDGEMENT

(1.) This reference has been made in connection with a suit for ejectment of an under-raiyat after service of notice on him in accordance with Section 49(b) of the Bengal Tenancy Act. On the 13th March 1895, the pre-deceesor of the plaintiffs granted a Sub-lease to the defendant in respect of the disputed property. The document described the interest of the grantor as that of a kaimi raiyat, that is, a raiyat with a permanent right; because, as pointed out in Meher Ali v. Kalai Khalashi 29 Ind. Cas. 461 : 19 C.W.N. 1129 : 27 C.L.J. 579, the term kaimi imports permanence of occupation but not fixity of rent: in other words, the lessor had an occupancy holding which was heritable but was not held at a fixed rate of rent. The Sub-lease did not fix a term and the defendant has been in occupation for more than twenty years. The plaintiff served a notice on the defendant on the 25th March 1915, which asked him, in aaaordanae with Section 49(b), to quit at the end of the agricultural year next following the year then current. The defendant did not, however, vacate the land. Consequently, the present suit was instituted to eject him. The Court of first instance held that the sub lease was registered in contravention of Section 85(2) of the Bangal Tenancy Act and was not admissible in evidence, Consequently, the defendant must be deemed to hold otherwise than under a written lease and his tenancy was thus terminable in the manner prescribed in Section 49(b). The Trial Court further found that the notice to quit had been duly served, that the tenancy had bean legally terminated thereby, and that there was really no defence to the claim. In this view, a decree for ejectment was made against the defendant. Upon appeal, the Subordinate Judge held that, as between the parties to the contract of tenancy, the law of estoppel was applicable, and the plaintiffs were bound by the agreement to part with the possession of the land permanently in favour of the defendant. The Subordinate Judge accordingly decreed the appeal and dismissed the suit. On second appeal to this Court, the Division Bench held that there was a sharp conflict of judicial opinion as to the true construction of Section 85 and referred the following question for decision by a Full Bench: is a lease purporting to be of a permanent character granted by a raiyat (not being a raiyat holding at a fixed rate) to an under-raiyat operative as against the grantor.

(2.) As the question arises in an appeal from an appellate decree, the entire appeal has been referred to the Full Bench for disposal.

(3.) Section 85 is in the following terms: (1) If a raiyat Sub-lets otherwise than by a registered instrument, the sublease shall not be valid against his landlord unless made with the landlord s consent, (2) A Sub--lease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years, (3) Where a raiyat has, without the consent of his landlord, granted a Sub-lease by an instrument registered before the commencement of this Act, the Sub-lease shall not be valid for more than nine years from the commencement of this Act.