1. This is an appeal on behalf of the Plaintiffs in anaction in ejectment. The land in dispute was originally held under thePlaintiffs by one Bhuban Mandal, who came into occupation in 1883. On the 2ndOctober 1888, Bhuban Mandal executed a permanent sub-lease in favour of theDefendant, whose occupation of the land had commenced from some time before.This lease was granted on the assumption that Bhuban Mandal was atenure-holder. The document was consequently registered without objection. Theproperty ultimately devolved on one Bhabini Dasi who made default in payment ofrent to the Plaintiffs. The latter, as the superior landlords, thereuponobtained a decree for arrears of rent, and in execution thereof the tenancy wasbrought to sale and purchased by the Plaintiffs themselves on the 14th February1907. The sale was confirmed on the 21st March following and symbolicalpossession was delivered to the Plaintiffs as purchasers on the 8th June 1907.The Plaintiffs were, however, unable to obtain actual possession, as theDefendant was in occupation. They thereupon caused a notice to be served uponhim as required by sec. 167 of the Bengal Tenancy Act. Notwithstanding theservice of notice, the Defendant refused to vacate the land. The Plaintiffsthereupon commenced this suit on the 12th March 1909, to eject the Defendant onthe ground that his interest, if any, had been validly terminated, and he wasconsequently liable to be ejected as a trespasser. The Court of first instancedecreed the suit. Upon appeal that decree has been reversed by the SubordinateJudge. The Courts below have concurrently found that the tenancy held by BhubanMandal constituted an occupancy holding. It is clear therefore that thesub-lease granted by Bhuban Mandal to the Defendant on the 2nd October 1888should not have been admitted to registration in view of the provisions ofsub-sec. (2), of sec. 85, of the Bengal Tenancy Act. In fact, as the instrumentpurported to be a permanent sub-lease, it would not have been admitted toregistration but for the fact that the land demised was described as comprisedin a permanent tenure. It follows accordingly that the sub-lease so registeredin contravention of the statute is not operative. This view is supported by thedecision in Jarip Khan v. Dorfa Bewa 17 C. W. N. 59 (1912). It is plain thatthe question which was raised in the case of Manik Borai v. Bani Ch. Mandal 13C. L. J. 649 (1910), namely, whether a sub-lease registered in contravention ofthe statute is operative as between the lessor and the lessee, does notconsequently arise in the present case. Judicial opinion is unanimous to theeffect that a sub-lease registered in contravention of the provisions of sec.85, sub-sec. (2), of the Bengal Tenancy Act, is not operative against thesuperior landlord of the occupancy raiyat. We must therefore determine therights of the parties on the footing that the Defendant did not acquire anytitle under the sub-lease of the 2nd October 1888. As already stated he was inoccupation from before the 2nd October 1888 : his status, from the commencementof his tenancy, was accordingly that of an under raiyat. The question is,whether he has a sub-tenancy which is required to be annulled by the purchaserunder cl. (a), of sec. 161, of the Bengal Tenancy Act. Now section 159 providesthat when a holding is sold in execution of a decree for arrears of rent due inrespect thereof, the purchaser shall take it subject to the interests definedas protected interests, but. with power to annul those defined as encumbrances.It is argued on behalf of the Defendant that he has an interest which falls withinthe description of protected interest as also of an encumbrance. Thiscontention requires consideration, because the Courts below have found that thenotice under sec. 167 of the Bengal Tenancy Act was not served upon theDefendant in accordance with law. If the notice had been served upon him, itwould have become needless to consider, whether he held a sub-tenancy which hadto be annulled as an encumbrance within the meaning of sec. 161; but it wouldhave been necessary to determine whether he had a protected interest within themeaning of sec. 160.

2. Now in so far as sec. 161 is concerned, the case for theDefendant is that he is an under-raiyat, independently of the invalid sub-leaseof the 2nd October 1888, and that he has consequently a sub-tenancy within themeaning of sec. 161, cl. (a). It may be conceded that the term " anysub-tenancy " is, by itself, comprehensive " enough to include theinterest of an under-raiyat. But the question arises, whether there is asub-tenancy in so far as the plaintiffs are concerned, because the Plaintiffsare not only purchasers at the sale in execution of the decree for arrears ofrent, they are also the superior landlords in respect of the occupancy holdingwhich was brought to sale. Sec. 85, sub-sec. (l), provides that if a raiyatsublets, otherwise than by a registered instrument, the sub-lease shall not bevalid as against the landlord, unless made with his consent. It has not yetbeen investigated, whether the Plaintiffs as landlords of the occupancy holdingsconsented to the grant of the sub-lease to the Defendant as an under-raiyat.But we shall assume, for the purposes of argument, that such consent was notgiven. If, then, the Defendant was inducted upon the land as an under-raiyatwithout the consent of the landlords of the occupancy-raiyat, it is plain thatthere is no sub-lease in his favour which is valid against the superiorlandlords. Consequently he does not hold any sub-tenancy which may be treatedas an incumbrance within the meaning of cl. (ft) of sec. 161 as against thelandlord auction-purchaser. The landlord auction-purchaser cannot, accordingly,be called upon to annul this sub-tenancy as an encumbrance. The view we take isin accord with that taken by this Court in the case of Peary Mohan v. BadalChandra I. L. R. 28 Cal. 205 (1900). We do not pronounce any opinion upon aquestion which may hereafter arise, namely, as to the precise position of astranger who purchases at a sale held in execution of a decree for arrears ofrent. As regards the case now before us, it is sufficient to observe that sec.161 clearly is of no assistance to the Defendants, if it is assumed that hisinterest as under-raiyat was created without the consent of the landlord.

3. In so far as sec. 160 is concerned, reliance is placed bythe Defendant on cl. (c) by which protection is afforded to any lease of landwhereon dwelling houses, manufactories or other permanent buildings have beenerected or permanent gardens, plantations, tanks, canals, places of worship orburning or burying grounds have been made. Here, again, precisely the samequestion arises as in the case of sec. 161. It cannot be reasonably contendedthat the Defendant has a lease of land within the meaning of cl. (c), sec. 160,when as against the Plaintiffs such lease is not valid, because not shown tohave been made with their consent. Here, too, we reserve the question which maypossibly hereafter arise as to the position of a stranger purchaser. But it isobvious that sec. 160 also is of no assistance to the Defendant.

4. It finally becomes necessary to determine whethersub-sec. (1) of sec. 85 applies to this case. The Courts below have notdetermined whether the land was sublet to the Defendant with the consent of thesuperior landlords of the occupancy raiyat. The determination of that questionwas unnecessary in view of the frame of the suit. The Plaintiffs as alreadyexplained sought to eject the Defendant on the ground that his interest hadbeen annulled in accordance with the provisions of sec. 167 of the BengalTenancy Act. That case has failed. Consequently the point just mentioned mustbe investigated. The learned Vakil for the Defendant has also contended thateven if cl. (c) of sec. 160 be held inapplicable, the Defendant may still beable to establish that the Plaintiffs are estopped, by reason of their conduct,from seeking relief by way of ejectment, and he has explained that the questionof estoppel was not pointedly raised in view of the frame of the suit. We areof opinion that in these circumstances, the question of estoppel should beinvestigated. The result is that this appeal is allowed, the decrees of theCourts below set aside and the case remanded to the Court of first instance inorder that the Court may determine upon evidence to be adduced by the partiesthe following questions; namely, first, whether the Defendant was granted atenancy as an under-raiyat with the consent of the landlord of his grantor, theoccupancy-raiyat; and, secondly, whether the claim for ejectment is barred bythe doctrine of estoppel. If it is found upon the first question that thesub-lease to the Defendant was granted with the consent of the Plaintiffs ortheir predecessors, or, if it is found upon the second question that thePlaintiffs are estopped by reason of their conduct, the suit will standdismissed. If both the questions are decided against the Defendant the suitwill stand decreed. Each party will pay his own costs in all the Courts up tothe present stage.

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Ashu Tosh Singha Ray and Ors. vs. Banomali Sain (11.03.1913- CALHC)