1. This is a Letters Patent appeal from the decision of my learned brother Jack, J., sitting in second appeal. He has given a certificate that the case is a fit one for an appeal under the Letters Patent. The case is an interesting and important one. The form in which the learned Judge has dealt with the matter is quite shortly this: Whether in the case of an under-raiyat who by custom has acquired a right of occupancy the interest is a protected interest by virtue of Clause (d), Section 160, Ben. Ten. Act, as it stood before the amendment of 1928. The suit was brought in the Court of the Munsif and it was a suit to recover khas possession of certain land. The footing of the suit was that the plaintiffs had taken title from the superior landlord of a certain raiyati, that the appellant, defendant 12 in the suit claimed an under-raiyati interest but that, as the superior landlord had bought the raiyati at a judicial sale for arrears of rent and had resettled the land with the plaintiffs, the plaintiffs were entitled to recover khas possession. The defence was that under the raiyati which had been sold, defendant 12 held an under-raiyati interest and that he had acquired a right of occupancy by custom. Accordingly he contended that he had by virtue of Clause (d), Section 160, an interest which stood notwithstanding the sale in execution and that the sale in execution only passed the the land subject to the right of occupancy vested in defendant 12.
2. When the matter came before the Munsif he first of all discussed the question whether the plaintiffs had their alleged interest in the land and he found that issue for the plaintiffs. The next question he discussed was whether or not the plaintiffs could get khas possession against defendant 12 and finding that defendant 12 was recorded in the khatian as an under-raiyat with a right of occupancy, the Munsif addressed himself only to the dispute whether the land referred to in the khatian was really the suit land. Having come to the conclusion that defendant 12 was in possession of the suit land and that the suit land and the land described in the khatian were the same, ha found that defendant 12 had established his case. He said:
The khatiau has recorded that defendant 12: has right of occupancy in the land by local custom. There is no evidence to rebut it. The interest is a protected interest and would save defendant 12 from eviction even by a purchaser at a bakipara sale.
3. The matter was taken on appeal to the lower appellate Court by the plaintiffs. We have not been shown the grounds in the notice of appeal: but it appears that the lower appellate Court decided the matter upon a footing which is untenable and need not be referred to. The matter then came before the learned Judge of this Court and the grounds of appeal before him were that the Court of appeal erred in law in holding that the plaintiffs were entitled to get khas possession and so forth. That was the appeal of defendant 12 just as the present appeal is an appeal by defendant 12. Now the learned Judge was not put in possession of any decision under the Bengal Tenancy Act prior to the amendment of 1928. He could not find that it ever had been decided one way or another whether an under-raiyati with a right of occupancy came within Clause (d), Section 160, Ben. Ten. Act. He then dealt with a contention that the amendment introduced in 1928 showed that under the unamended Act the right of occupancy of an under-raiyat was within Clause (d), Section 160. I am clearly of opinion that that is a precarious mode of reasoning and I have no doubt that he was quite right in being dissatisfied with the reasoning by which the old state of the law was said to be arrived at by considering the amendment.
4. On this appeal however it appears that there is authority upon the question under the Act as it stood before 1928, and we have been referred to the case of Debi Raut v. Asutosh Bhattacharjee Second Appeal No. 904 of 1911, Decided on 25th February 1913 by Mookerjee and Beachcroft, JJ. In that case which was exactly parallel to the present case, it was held by the learned Judges that Section 160, Ben. Ten. Act made any right of occupancy a protected interest not liable to be annulled by a purchaser at a sale for arrears of rent. That was applied to the case of an under-raiyati. We have also been shown two comparatively recent cases'. Kamini Sundari Bewa v. Nepal Mondal : AIR1932Cal389 and Dinanath Dutta v. Kshitish Chandra  35 C.W.N. 1001 both decided by my learned brother Dwarkanath Mitter, J. There again it was held by him that the clause in Section 160 was wide enough to 'cover and did cover the case of an ,under-raiyat having a right of occupancy; but ho addressed himself to the question whether, if the under-raiyati was an interest invalid against the landlord by reason of Section 85 of the Act, the right of occupancy could be regarded as a protested interest capable of being set up against the landlord or the landlord's lessee. He held:
Where the under-raiyati lease was in. contravention of Section 85, it is not binding on the superior landlord whether the under-raiyat has acquired a right of occupancy by custom or not and even where he has acquired such a right it is not a protected interest within the meaning of Section 160 (d).
5. In both the cases the learned Judge took the same view as had been taken in the first case cited; but in the cases before him he had to consider the further question which arose out of Section 85, Ben. Ten. Act. The position therefore is that the ground upon which the learned Judge in the present case has decided the mat-tar before him turns out to be contrary to the previous decisions and, in my judgment, the wording Clause (d), Section 160, cannot be cut down so as to exclude the case of an under-raiyat. No doubt the right of occupancy of an under raiyat is created not by the Act but by custom which is merely saved by Section 183. It is not however in my judgment possible to narrow Clause (d) by restricting it to such rights as are created by the Bengal Tenancy Act itself. I am not therefore disposed to differ from the view taken in the cases to which I have referred; and for these reasons, prima facie, it appears to me that the present appeal ought to be allowed. In my judgment the case was quite correctly and properly dealt with by the first Court and there was no real substance in the appeal taken from that decree.
6. It has however been contended before us that an opportunity ought to be given to the plaintiffs to put in issue the question whether the under-raiyati of defendant 12 was bad by reason of Section 85, Ben. Ten. Act, that is to say, to discuss the question whether it originated by a registered instrument and whether, if not, it was a tenancy to which the landlord assented. I suppose other questions might be raised. If it did arise by a registered instrument, it might turn out to be bad because the term was more than nine years and so on and so forth. The question is whether in this particular case we ought to send the matter back to the trial Court and allow these contentions to be raised for the first time. It has been suggested that it was for the under-raiyat in this case to deal with all possible objections under Section 85, that before he can resist eviction it is for him to show not merely that he has an under-raiyati but to show from its origin that none of the objections that can be taken to its validity as against the landlord under Section 85, Ben. Ten. Act are present in this case. It is said that the onus in that way is upon the under-raiyat because the plaintiffs take their title from an auction-purchaser who is himself the superior landlord. It is not contended that the same thing would apply in the case of a stranger auction-purchaser. In my judgment having regard to the issues and the pleadings in the case, it would be entirely wrong for us to send the matter back in order that the plaintiffs may lay an entirely new axe to the root of the title of defendant 12.
7. If the matter was put in issue whether defendant 12 had an under-raiyati with a right of occupancy, it was for the plaintiffs at all events to make it perfectly clear that they were challenging his title by showing that is offended in some way against Section 85. They would have to show how it offended against Section 85 and it is not in the least reasonable that an under-raiyat who can produce the Record of Eights in his favour and against whom no issue has been taken as to his tenancy being entirely invalid vis-a-vis the landlord should be expected to deal with these matters in the absence of any objection to his prima facie title. It appears to me that when a landlord buys at an execution sale, prima facie he gets, as the statute says, all the interests subject to the protected interests and an under-raiyati of an occupancy raiyat is one of the protected interests. Until it is shown that the under-raiyati is invalid either altogether or as against the plaintiffs in the suit, it is to be assumed that the interest which the under-raiyat claims is proved by the khatian. I think it would be very unjust indeed if we, as the fourth Court dealing with this case, were to send it back so that the under-raiyat should have to defend his title against an attack under Section 85. I want to make it perfectly clear that I am not in any way throwing doubt upon the main element in the decision of Mitter, 8. I think that this appeal should be allowed with costs, the order of the Munsif should be restored and defendant 12, the appellant before us, should be given the costs of all subsequent Courts. C.C. Ghose, J. 9. I agree.
8. I think that this appeal should be allowed with costs, the order of the Munsif should be restored and defendant 12, the appellant before us, should be given the costs of all subsequent Courts.
C.C. Ghose, J.
9. I agree.