1. This is an appeal on behalf of the plaintiff in an actionin ejectment. The plaintiff seeks to recover possession of the disputed land onthe strength of a permanent lease granted in his favour by the tenth defendant,and upon the allegation of wrongful dispossession by the other defendants.

2. The Court below has found that the landlord of theplaintiff was a raiyat and has held, upon the authority of the decisions ofthis Court in the cases of Srikant Mondul v. Saroda Kant 26 C. 46 and RamgatiMondul v. Shyama Charan Dutt : 6 C.W.N. 919, that theplaintiff has not acquired any interest in the land on the basis of thepermanent lease taken by him.

3. On behalf of the appellant, this view has been assailedon the ground that the question of the validity of the sub lease granted to theplaintiff by his landlord cannot be questioned by a trespasser in the positionof the contesting defendant. In support of this proposition reliance has beenplaced upon the cases of Tamijuddi v. Asgar Howladar : 36 C.256, 1 Ind. Cas. 942, 13 C.W.N. 183 and Banka Behary (Beni Madhab) v. RajChandra Pal : 14 C.W.N. 141; 2 Ind. Cas. 202 [LQ/CalHC/1909/208] . Before we dealwith the judicial decisions to which reference has been made and which may notall be easy to reconcile, we must examine the terms of section 85 of the BengalTenancy Act, which, it is conceded, governs this matter.

4. Section 85 of the Bengal Tenancy Act defines therestrictions on sub-letting by a raiyat. The first sub-section provides that,if a raiyat sub-lets otherwise than by a registered instrument, the sub-leaseshall not be valid against his landlord, unless made with the landlordsconsent. The second sub-section provides that a sub-lease by a raiyat shall notbe admitted to registration, if it purports to create a term exceeding nineyears. It is not necessary for our present purpose to refer to the provisionsof the third sub-section which deals with an instrument registered before thecommencement of the Bengal Tenancy Act. Now it is, we think, reasonably plainthat the first two sub-sections must be read together. It is clear from thefirst sub-section that the question of the validity of a sub-lease not createdby a registered instrument may be raised by the landlord of the raiyat, becauseit provides expressly that such sub-lease shall not be valid against thelandlord of the raiyat unless made with his consent. The second sub-sectionguards against registration of a lease by which a term exceeding nine years iscreated, the effect of this is to render inoperative a sub-lease admitted toregistration in contravention of the provisions of the law. But it is clearthat such invalidity operates only in favour of the landlord of the raiyat.Apart from judicial decisions, therefore, upon a plain reading of the sectionof the statute, the position seems to be fairly clear that the question of theinvalidity of a sub-lease granted in contravention of these provisions can beraised only by the landlord of the raiyat. This view is supported by some ofthe decisions to which reference has been made.

5. In the earliest of the cases mentioned,--Srikant Mandulv. Sarada Kant Mandul 26 C. 46,--the dispute was between an under-raiyat on theone hand and the superior landlord of the raiyat on the other, and it was heldthat a sub-lease which had been registered in contravention of sub-section (2)of section 85 was not binding upon the landlord of the raiyat. In the secondcase,--Ramgati Mandul v. Shama Churn Dutt : 6 C.W.N.919,--the dispute arose between the sub-tenant of an under-raiyat as plaintiffand the representatives of the raiyat. The provisions of section 85 would notbe strictly applicable to a case of this description; but apparently thelearned Judge held that the principle embodied therein was applicable. We mayobserve here that it is difficult to reconcile this decision with the case ofFazel Sheikh v. Keramuddi Sheikh : 6 C.W.N. 916. In thatcase, it was held that if an under-raiyat was in possession under a sub-leasegranted to him in contravention of the provisions of section 85 of the BengalTenancy Act, he could not be ejected by the landlord of the raiyat. Thatdecision was passed on the ground that, although the instrument was inoperativeunder section 85, the under-raiyat had a subsisting tenancy. If this view beadopted as well-founded, it is difficult to see why the same principle shouldnot be applied when the under-raiyat happens to be the plaintiff, as in thecase of Ramgati Mandul v. Shama Churn Dutt : 6 C.W.N. 919. Ifit be ruled that an under-raiyat acquires a valid tenancy, although theinstrument may be inoperative under section 85, it is clearly immaterialwhether he is the plaintiff or the defendant in the suit. A similar view wasadopted in the case of Banka Behari v. Raj Chander Pal : 14C.W.N. 141 : 2 Ind. Cas. 202 [LQ/CalHC/1909/208] in which it was ruled that, even on the assumptionthat a permanent mokurari under-raiyat lease is void under section 85 of theBengal Tenancy Act, it is open to the under-raiyat to prove a tenancyindependently thereof. We must not, however, be taken to express any opinion asto the other ground mentioned in the judgment, namely, that as the plaintiffhad proved prior possession, bare possession was sufficient title against thedefendant-trespasser. The learned Judges, when they founded this conclusionupon the decision of the Bombay High Court in Pemraj Bhavaniram v. NarayanShivaran 6 B 215, apparently overlooked that the contrary view had been adoptedby this Court in the case of Purmeshur Chowdhry v. Brijo Lall Chowdhry 17 C256; Shama Churn v. Abdul Kabeer : 3 C.W.N. 158 and NisaChand v. Kanchiram : 26 C 579; 3 C.W.N. 568, in which it washeld that mere previous possession does not entitle a plaintiff to a decree forthe recovery of possession, except in a suit under section 7 of the SpecificRelief Act, which must be brought within six months from the date of thedispossession. There has been much divergence of judicial opinion on thissubject, as appears from the decisions in Narayana v. Dharmachar: 26 M. 514 and Krishna Aiyar v. Secretary of State: 33 M. 173; 4 Ind. Cas. 1070; 6 M.L.T. 306; 20 M.L.J. 716,which accord with the view indicated in Hanmantrav v. Secretary of State 25 B287 and Ali v. Pachu Bibee 5 Bom. L.R. 264 while the most recent case in thisCourt [Shama Charan v. Surja Kant : 6 Ind. Cas. 806 [LQ/CalHC/1910/316] ; 15C.W.N. 163] seems to show an inclination in favour of the Bombay view. Thequestion is by no means free from difficulty, and we reserve our opinion on it,involving, as it does, an examination of the true effect of the decision of theJudicial Committee in Sundar v. Parbati 16 I.A. 186, 12 A. 51.

7. The learned Vakil for the respondent has next contendedthat the decision of this Court in the case of Tamijuddi v. Asgar Howladar: 36 C. 256, 1 Ind. Cas. 942, 13 C.W.N. 183 is inconsistentwith the provisions of section 85 of the Bengal Tenancy Act. It is notnecessary for our present purpose to examine whether that decision iswell-founded on principle, because the learned Judges appear to have held thatan under-raiyat was entitled to succeed as against the superior landlord of theraiyat as long as the raiyati interest intervened and continued in operation,It may be pointed out that-, in the case before us, if the allegations of theplaintiff are proved to he true, the contest is not between the under-raiyatand the superior landlord of the raiyat but between the under-raiyat and atrespasser who has no title to the property. In this view it becomesunnecessary to consider whether, as appears to have been held in the case ofBasaratulla Mundle v. Kasirunnessa Bibi : 11 C.W.N. 190, thevalidity of a sub-lease granted by a raiyat in contravention of section 85 canbe questioned by the grantor himself. In the case of a contest between thegrantor and the grantee, a question of estoppel may possibly arise unless,in-deed, the principle is invoked that there can be no estoppel against an Actof the Legislature [Jagadbandhu v. Radha Krishna : 36 C. 920;4 Ind. Cas. 414 [LQ/CalHC/1909/233] ; Abdul Aziz v. Kanthu Mallik : 10 Ind. Cas.467] We must, therefore, hold that in the case before us, the suit ought not tohave been dismissed on the ground that the plaintiff had acquired no validtitle to the property, because, even though the instrument under which heclaims be inoperative under section 85 of the Bengal Tenancy Act, he had asubsisting interest when the action was commenced.

8. The result, therefore, is that this appeal must beallowed, the decree of the Subordinate Judge set aside and the case remanded tohim in order that the appeal may be disposed of alter the decision of any otherquestion that may arise between the parties. The costs of this appeal willabide the result.

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Manik Borai vs. BaniCharan Mandal (16.12.1910 - CALHC)