Chatterjea and Newbould JJ.
1. This appeal arises out of a suit for khas possession of the lands in, dispute brought by the plaintiff who purchased the lands at a sale held in execution of a decree for arrears of rent.
2. There was a dispute as to the nature of the interest purchased by the plaintiff. but it is found by the lower Appellate Court that the interest of the tenant which was purchased by ''the plaintiff was an occupancy holding and that the defendant No. 1 was an under-raiyat under that tenant. The Court of first instance decreed the suit. On appeal, the lower Appellate Court held that the plaintiff was bound to annul the in cumbrance of the defendant under Section 167 of the Bengal Tenancy Act and also to serve a notice to quit under Section 49 of that Act.
3. We are of opinion that the learned District Judge was wrong in the view he has taken in the case. Section 85, Clause (1), provides that if a raiyat sublets otherwise than by a registered instrument, the, sublease shall not be valid against his landlord unless made with the landlord's consent. There was no lease in writing in the present case, and there was no consent of the landlord to the creation of a sublease. It was therefore void as against the landlord.
4. The provisions of Section 167 of the Bengal Tenancy Act for annulment of sub-tenancies, and the provisions of Section 49 of the Act which require notice to quit to be served on the, under-raiyat, have reference to cases where there is a subsisting tenancy which stands good against the landlord unless it is put an end to in the manner provided in those two sections. The sub-lease in the present case was invalid from the beginning as against the landlord. It was, therefore, not necessary for the landlord to annul that which had never been operative against him. This view is supported by the decisions, of this Court in the cases of Peary Mohun Mookerjee v. Bactul Chandra Bagdi (1900) I.L.R. 28 Calc. 205 and Gayigadhar Mondial y.Rajr endra Islath Chosh (1913) 17 C.W.N. 860.
5. The learned District Judge has relied upon-the cases of Amirullah Mahomed v. Nasir Mahomed (1904) I.L.R. 31 Cale. 932 and Lal Mahomed Sarkar v. Jagir Sheikh (1909) 13 C.W. & 9.13. But in those cases the landlord acquired the interest of the occupancy raiyat under a conveyance. Such a voluntary alienation by the occupancy-raiyat could not enlarge the rights of the vendee (although... he might be the landlord), so as to enable him to get khas possession of the land without putting an end to the sub-tenancy which his vendor would be bound to determine if there had been no conveyance. The distinction between, a purchase at a sale for arrears of rent, and a purchase under a conveyance, is pointed out by Sir Lawrence Jenkins in the case of Lal Mahomed Sarkar v. Jagir Sheikh (1909) 13 C.W.N. 913. In that case it was held that a landlord purchasing the interest of an occupancy-raiyat under him is not entitled to treat as a trespasser an under-raiyat holding the land under an oral lease from the raiyat. The learned Chief Justice distinguished the case of Peary Mohan Mookerjee v. Badul Chandra Bagdi (1900) I.L.R. 28 Calc. 205 on the ground that there the tenant's interest did not pass by the voluntary act of the tenant. The case of Peary Mohan Mookerjee v. Badul Chandra Bagdi (1900) I.L.R. 28 Calc. 205 was followed by Jenkins C. J. in Cangadhar v. Rajendra Nath (1913) 17 C.W.N. 860 cited above.
6. The decree of the lower Appellate Court must accordingly be set aside and that of the Munsif restored. The appellant will be entitled to his costs in this Court and the lower Appellate Court.