1. This appeal arises out of a suit brought by the plaintiffs, appellants, for declaration of their jamai right to certain lands and their purchased right to a hut standing on the land, and for possession of the same, on the allegation that the plaintiffs have obtained a permanent lease of the land from the defendant No. 7, who is a gantidar, and that the remaining;' defendants, who are the superior landlords, and persons claiming under them, have resisted the plaintiffs in obtaining possession of the same.
2. The defence of the defendants Nos. 1 and 2, who are the superior landlords, was to the effect that the defendant No. 7, under whom the plaintiffs claim to hold as sub-lessees, never had any permanent right in the land, that he was only a raiyat in respect of the same, and that the plaintiffs therefore have acquired no right to the property in dispute.
3. The first Court found for the plaintiffs and gave them a decree. On, appeal by the defendants, Nos. 1 and 2 the Lower Appellate Court has reversed that decree, holding that the plaintiffs have acquired no right to the land in dispute by their sub-lease, it being invalid under Section 85 of the Bengal Tenancy Act.
4. In second appeal it is contended for the plaintiffs, appellants, that the decision of the Lower Appellate Court, dismissing the whole suit, is wrong in law, first, because the suit, so far as it relates to the hut in question, ought not to have been dismissed, when the first Court found that the plaintiffs had proved that they had purchased the hut and that finding had not been his placed; and secondly, because the finding of the Lower Appellate Court, that the sub-lease is altogether void, is incorrect, and the Lower Appellate Court ought to have held that the sub-lease was valid, at least for nine years.
5. The first contention is substantially correct, and the case must go back to the Lower Appellate Court in order that it may dispose of the appeal with reference to the hut.
6. As regards the second point, Section 85 of the Bengal Tenancy Act provides in Sub-section 1, that if a raiyat sub-lets otherwise than by a registered instrument, the sub-lease shall not be valid against his landlord unless made with the landlord's consent; the second sub-section provides that a sub-lease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years; and the third sub-section provides that where a raiyat has, without the consent of his landlord, granted a sub-lease by an instrument registered before the commencement of the Act, the sub-lease.shall not be valid for more than nine years from the commencement of the Act.
7. The only case, then, in which, according to this section, a sub-lease created by a registered instrument without the consent of the landlord, though purporting to be for a longer period than nine years, is to be upheld for the period of nine years, reckoned from the commencement of the Bengal Tenancy Act, is where the document was registered before the commencement of the Act. In any other case, the validity of a sub-lease will have to be tested by the conditions imposed by Section 85; and there is nothing in the section authorising the Court to split the contract of sub-letting into two parts, a valid portion extending to a period of nine years, and an invalid portion for the remainder of the term.
8. It was argued that the sub-lease in this case was registered, and as there was nothing on the face of that document to disentitle it to be registered, the grantor purporting to be, not a raiyat, but a tenure-holder, the condition required by the first sub-section was satisfied, and the sub-lease was one by a registered instrument, and was therefore valid.
9. We are of opinion that this argument is wholly unsound; for if it were otherwise, it would always be in the power of any raiyat to render the section altogether nugatory by pretending to be a tenure-holder and granting a sublease in perpetuity, or for any long term, and thus inducing the registering officer to register it. The effect, such as Section 85 attaches to a registered sub-lease, attaches to such a document when the registration has taken place, not merely as a matter of fact, but also in accordance with the conditions of Sub-section 2; and in the present case, it having been found that the grantor of the sub-lease was a raiyat we must take it that the sub-lease ought not to have been admitted to registration if it had been executed without a misrepresentation of fact as it has been.
10. That being so, we think that the Lower Appellate Court was quite right in holding that the sub-lease in this case was altogether void, having regard to the provisions of Section 85 of the Bengal Tenancy Act. As the appeal fails upon the main contention raised in it, we think that notwithstanding that the case has to be remanded to the Lower Appellate Court, in regard to the claim for the but, the respondents are entitled to the costs of this appeal.