Authored By : Banerjee, Francis Maclean

Banerjee, J.

1. This is an appeal under Clause 15 of the Letters Patentagainst a decision of Mr. Justice Hill confirming the judgment of the Courtsbelow, by which the plaintiffs suit; for khas possession of some land has beendismissed. The plaintiff sued for khas possession of the land in dispute, onthe allegation that it formed part of the occupancy holding of one MoheshChandra Ghose under the plaintiff, that that holding having been sold inexecution of a decree for arrears of rent was purchased by the plaintiff, andthat the plaintiff was entitled to khas possession of the land as the defendanthad no right to the same.

2. The defence so far as it is necessary to consider it now,was that the land was held by the defendant as an under raiyat under Mohesh,and that the defendant had acquired a right of occupancy in the same.

3. Both the First Court, and the learned Subordinate Judgeon appeal, held that the suit was liable to dismissal, as the plaintiff even ifhe was entitled to set aside the undertenancy of the defendant, could notsucceed in this suit as he did not proceed in accordance with the provisions ofSection 167 of the Bengal Tenancy Act; and Mr. Justice Hill has confirmed theirjudgments holding that, though by Section 85 of the Bengal Tenancy Act, J thesub-lease granted by Mohesh to the defendant was invalid, and though by Section22 of the Act, upon the purchase of the occupancy holding by the plaintiff whowas the sole landlord, the occupancy holding became merged in the plaintiffszamindari right, still such merger could not affect the rights of thedefendant, and that it was, therefore, necessary for the plaintiff, if hewanted to annul those rights, to proceed in accordance with the procedureprescribed by the Bengal Tenancy Act.

4. It is contended on behalf of the plaintiff appellant thatthis view is incorrect, and that the effect of Section 85 of the Bengal TenancyAct is to make the sub-letting, which was otherwise than by a registeredinstrument and was without the landlords consent, altogether invalid asagainst the landlord, and if that was so, there were no rights in thesub-lessee, as such, which could come within the reservation contained in theconcluding words of Sub-section 1 of Section 22 of the Act.

5. I am of opinion that this contention is sound. It is truethat Sub-section 1 of Section 22 concludes with these words: "Nothing inthis sub-section shall prejudicially affect the rights of any thirdparty;" but that can only mean rights such as are valid. Here the right,which, it is contended, was protected by that provision, is expressly declaredby Section 85 of the Act to be invalid as against the landlord. Therefore we musthold that there was no right in the sub-lessee as such, which could havesubsisted, and which can stand in the way of the landlords recovering khaspossession. The necessity of following the procedure prescribed by Section 167of the Bengal Tenancy Act for annulling an incumbrance arises only where theincumbrance is a subsisting one, and but for the annulment which that sectioncontemplates by the purchaser at a sale for arrears of rent, would be valid.Here the sub-lease which would otherwise have come within the definition of anincumbrance, was invalid from the beginning as against the landlord; and forthe landlord it was not necessary to annul that which was never operativeagainst him. If a third party had purchased the right of occupancy at the salefor arrears of rent, it would have been necessary for such third party tofollow the procedure prescribed by Section 167 of the Tenancy Act. I amtherefore of opinion that the decision appealed against must be reversed.

6. But then it is contended for the defendant, respondent,that in addition to his rights under the sub-lease, he set up a right ofoccupancy which he alleged he had acquired, and which an under-raiyat mayacquire, having regard to the provisions of Section 183 of the Bengal TenancyAct as explained by illustration 2 to that section; and as the Courts belowhave not, in the view they took of the case, thought it necessary to determinethe question whether the defendant has acquired such a right of occupancy, thecase ought to be remanded to the Court of First Instance in order that thatquestion may be decided. We think that effect ought to be given to thiscontention on behalf of the respondent. The result is that the judgments anddecrees appealed against must be set aside, and the case sent back to the FirstCourt in order that it may determined the question whether the defendant hasacquired a right of occupancy. The parties will be at liberty to adduce freshevidence upon that question. The costs will abide the result.

Francis Maclean, C.J.

7. I have only one word to add. The appeal might, to mymind, be disposed of upon this short ground. It re clear that the defendant wasclaiming as a sub-lessee not as an occupancy raiyat; but as the instrumentcreating the sub-tenancy was not registered, it was not valid under Section 85of the Bengal Tenancy Act as against the landlord. That ought to end the case.Then it is said that, inasmuch as here the interest of the landlord and of histenant became united in the same person, the superior landlord, the defendantsrights are saved under Section 22 of the Bengal Tenancy Act The answer is thathe had no rights and there was nothing to be saved.

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Peary Mohun Mookerjeevs. Badul Chandra Bagdi and Ors.(21.08.1900 - CALHC)