HARI CHARAN DUTTA Vs. NIBARAN CHANDRA DAS

JUDGEMENT

(1.) This is an appeal by the defendants. The plaintiffs, who are the superior landlords, are admittedly tenure-holders. Under them was one Biswa Nath Das, who had a holding of 18 cattas. The defendants were under-raiyats under Biswa Nath Das. They claimed title by what purported to be a permanent lease given to them in 1883. After, Biswa Nath s death a suit for arrears of rent was brought against his daughters by the plaintiffs, who got a rent-decree and, in execution of that decree purchased the holding. This was on the 27th July 1907. The plaintiffs alleged that when they went to take possession they were resisted. They subsequently served a notice under Section 49 of the Bengal Tenancy Act on the defendants and in due course brought a suit for ejectment against them. Both the Courts below decreed the plaintiffs suit. When the matter went on appeal to the learned District Judge, he found that while the defendants had at one time set up a plea that their immediate landlords were tenure-holders, and at another time stated that they were raiyats at fixed rates, in fact Biswa Nath Das was an occupancy raiyat and that consequently the defendants were under raiyats and in that view of the facts, a permanent lease was invalid under Section 88 of the Bengal Tenancy Act.

(2.) On appeal the points which have been taken are (1) that Biswa Nath Das was a raiyat at fixed rates, secondly, that on the finding of the learned District Judge that Biswa Nath was an occupancy raiyat and the consequent finding that the defendants are under-raiyats, even if the lease was invalid the defendants would have been entitled to fall back on their possession to establish the then tenancy as under-raiyats. The third is that the facts that the plaintiffs had issued notice under Section 49 of the Bengal Tenancy Act on the defendants and had allowed them to remain in possession for some 4 years, raised them from the status of under-raiyats to that of raiyats, because by the doctrine of "merger" when the interest of the occupancy raiyats became united with that of the tenure-holders in the same persons, by reason of Section 22 of the Bengal Tenancy Act the status of the plaintiffs being that of tenure-holders, the defendants, who held immediately under them, thereby became raiyats. The fourth argument is that in any case the defendants had a protested interest because they had a Baroj or betel plantation on the land and thereby their interest was a protected interest within the meaning of Section 160, Clause (c), of the Bengal Tenancy Act and that as the landlords did not proceed under Section 167 of the Act, their suit must fail.

(3.) The first point taken that Biswa Nath was a raiyat at fixed rate was not seriously pressed. The learned Pleader admitted that he could only press his argument on that point on the supposition that the learned Judge had thrown the onus on the wrong side and he was not prepared to argue as a point of law that the learned Judge had erred in throwing the onus as he did. We must, therefore, proceed on the footing that the learned Judge s finding that Biswa Nath was an occupancy raiyat cannot be attacked. That brings me to the second point, namely, that the under-raiyat is entitled to fall back on his possession to prove the validity of his under raiyat tenure. There has been number of cases of this Court dealing with Section 85 to which it is not necessary to refer, because it is quite clear that under Section 85, Clause 1, a sublease by a raiyat, unless by a registered instrument, is not valid against the landlord, unless made with the landlord s consent. Here there is no registered instrument and that explains the reason why the case made in the first Court was that the sub-lease had been made with the landlord s consent. The Munsif found against that allegation and his finding does cot appear to have been attacked before the learned Judge on appeal and remained undisturbed. That being so, I must proceed on the supposition that the case made that the landlord gave his consent to the sub lease has not been made out and, therefore, the sub lease by the clear provisions of Section 85, Clause 1, is invalid against the landlords. It is absolutely immaterial whether the under-raiyat got possession or not. Any question of part performance or of alternative title by possession in the absence of the document does not arise, because as I have stated, the terms of Section 85, Clause 1, are clear. There must be either a registered lease for a term not exceeding nine years or the landlord s consent: here there is neither.