NAYANJAN BIBI Vs. DURGADAS BANDAPADHAYA

JUDGEMENT

(1.) THIS appeal arises out of a suit for ejectment. The plaintiffs in the suit are the owners of an osat taluq. For a certain period their property was let out in ijara. During the term of the ijara the tenant of a certain holding, one Salim, fell into arrears. A suit was brought against him and in execution of a decree obtained, the holding was purchased by the ijaradar. Having thus purchased the holding he next proceeded to sub-let the same to the old tenant, Salim. Thereafter, Salim died and on the death of Salim the ijaradar or purchaser of the holding next inducted upon it his heirs the present defendants. On the expiry of the ijara lease the landlord seeks to eject the heirs of Salim as trespassers. The first question in the case is, whether the ijaradar when he re-let to Salim re-let to him as an under raiyat or as a raiyat of the holding which he had purchased at the auction, that is to say, whether this holding continued. Having regard to the provisions of Section 22(3) of the Bengal Tenancy Act and also to the terms of the ijara lease we must conclude that the holding continued and that Salim and after him his heirs who were inducted upon the same by the ijaradar were in the position of under-raiyats, The ijara lease authorized the ijaradar to buy holdings at sales in execution for arrears of rent and also provided that during the term of the ijara he was at liberty to sub-let the same. The sub-letting to Salim s heir must, therefore, be taken to be by consent of the landlord. The sub- letting to Salim s heirs was not by a written lease. When the proprietor succeeded to the ijaradar in the possession of the holding he took it burdened with the under-raiyats inducted by the ijaradar. The sub-letting not having been by a written lease Section 49(b) applies and it follows that Salim s heirs, the present under raiyats, cannot be ejected otherwise than after notice, It follows, therefore, that this appeal must succeed and that the plaintiff s suit must be dismissed with costs in all the Courts.