BHUBAN MOHAN GUHA Vs. SHEIKH BADAN

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession of the lands in, dispute brought by the plaintiff who purchased the lands at a sale held in execution of a decree for arrears of rent.

(2.) There was a dispute as to the nature of the interest purchased by the plaintiff. but it is found by the lower Appellate Court that the interest of the tenant which was purchased by the plaintiff was an occupancy holding and that the defendant No. 1 was an under-raiyat under that tenant. The Court of first instance decreed the suit. On appeal, the lower Appellate Court held that the plaintiff was bound to annul the in cumbrance of the defendant under Section 167 of the Bengal Tenancy Act and also to serve a notice to quit under Section 49 of that Act.

(3.) We are of opinion that the learned District Judge was wrong in the view he has taken in the case. Section 85, Clause (1), provides that if a raiyat sublets otherwise than by a registered instrument, the, sublease shall not be valid against his landlord unless made with the landlord s consent. There was no lease in writing in the present case, and there was no consent of the landlord to the creation of a sublease. It was therefore void as against the landlord.