ISWAR KRISHNA CHANDIMAJEE THAKUR Vs. BRIJBEHARI DAS

JUDGEMENT

(1.) The appellant is the proprietor of an estate in Purnea District who brought to sale and purchased an istimarari tenure within his own estate which was held at a variable rate of rent istimarari lekin mokarrari nehi. This tenure.holder's predecessor had in 1870 created an under, tenure which purported to be an istimarari mokarrari tenure, a permanent tenure at a fixed rate of rent. The proprietor instituted the suit out of which this appeal arises for enhancement of rent of the under-tenure claiming that his tenure-holder could not, when granting an under-tenure, create a status higher than that which he him-self enjoyed. The Munsif found that the entry of status in the Record of Rights was incorrect and allowed enhancement of rent under Section 7 of the Tenancy Act. His decision was reversed on appeal by the District Judge who accepted the entry in the Record of Rights and held on the authority in Tayefa Khatun V/s. Surendrakumar Sen the tenure, holder whose own rent was variable, had the power to create a permanent tenure at a fixed rate.

(2.) Attention is drawn on behalf of the appellant to two decisions of this Court (Second Appeal No. Chandra Mohan Manjhi V/s. Midnapur Zamindari Co. Ltd. Second Appeal No 754 of 1929 and Second Appeal No. of Bhaolanth Marwari V/s. Midnapur Zamindarin Co. Second Appeal No. 1185 of 1931). Mr. S.M. Mullick on behalf of the respondent argues that when the proprietor purchased in execution of a rent decree the intermediate tenure, he was obliged to annul incumbrances under Section 167 of the Tenancy Act, if he was not to be bound by all the contracts into which the late tenure, holder might have entered regarding his tenure. This was the view taken in Tayefa Khatun V/s. Surendrakumar Sen which was expressly not followed by the Division Bench of this Court in Second Appeal No. Bhaolanth Marwari V/s. Midnapur Zamindarin Co. Second Appeal No. 1185 of 1931 We may say that it appears to us that the purchaser who does not annul incumbrances under Section 167 is bound to recognize such incumbrances as the tenant had power to create; but where the tenant has purported to create in his under tenant a status higher than his own, the landlord is not bound to recognize such a status in the under-tenant.

(3.) In fact the under-tenant could not create such a status. The utmost that he could create was a tenure to be held on as favourable terms as his own, and if he entered into a contract with the under-tenure holder that his rent should not be enhanced, he did not thereby confer upon him the status of permanent tenure- holder at a fixed rate so far as the proprietor of the estate was concerned. This was the view taken in the decisions of the Division Benches of this Court, which I have quoted, by which we are bound. It must be held that the under-tenure holder holds a permanent tenure, but at a rent liable to en. hancement. No other point has been argued in this Court. The result is that I would set aside the decree of the District Judge and restore the decree of the Munsif. The plaintiff is entitled to his costs throughout. Rowland J.