1. The facts of this case are shortly these:--One Gumai Nasya held an occupancy holding under Roop Mohun, a permanent tenureholder. Gumai sublet the lands comprised in his holding to the ancestor of the present defendants, but the sublease was not made under a registered instrument, nor was it made with the consent of the landlord. In the year 1887-88 the plaintiff purchased Roop Mohun's interest in the permanent tenure and subsequently acquired the occupancy holding of Gumai by a registered kabala. And he then instituted the present suit for establishment of his right to the disputed lands and for khas possession on the ground that by his purchase of the occupancy holding the right of occupancy had merged into the plaintiff's superior interest: that the defendants were under-raiyats under Gumai, and that, under the provisions of Section 85(1) they were not entitled to remain in possession.
2. One of the questions raised between the parties in the Court below was whether the defendants were liable to be ejected without a notice to quit being served upon them under the provisions of Section 49 of the Bengal Tenancy Act. The Lower Appellate Court has held that no such notice was necessary to be given to the defendants, because the sublease to the defendants by Gumai was invalid so far as the landlord is concerned, and the plaintiff being both the landlord and the purchaser of the occupancy holding of Gumai was entitled to eject the defendants. And the only question that we have to determine in this appeal is whether the defendants were entitled to notice before they could be ejected from the lands in suit.
3. No doubt under Section 22 of the Bengal Tenancy Act, by reason of the purchase that was made by the plaintiff, the landlord, the occupancy holding has merged into his superior tenure; but it will be observed that it is only by reason of the plaintiff's purchase of such occupancy holding that he has acquired a right to bring a suit against the defendants. It is not a case of acquisition of an occupancy holding at a sale for arrears of rent under the Bengal Tenancy Act, as it was in the case of Peary Mohun Mookerjee v. Badul Chandra Bagdi (1900) I.L.R. 28 Calc. 205. The plaintiff did not acquire the occupancy holding free of the incumbrances created and engagements entered into by the occupancy holder, but he acquired such rights as the occupancy holder had at the time. That person had already sublet his holding to the defendants, and there can be no doubt that, if he had not sold his holding to the plaintiff but had still continued to hold the property, he could not have maintained an action for ejectment without a notice to quit being served upon the defendants.
4. Section 22 of the Bengal Tenancy Act, after stating that when the immediate landlord of an occupancy holding is a proprietor or permanent tenureholder and the entire interest of the landlord and the raiyat became united in the same person, the occupancy right shall cease to exist, lays down that 'nothing in that section shall prejudicially affect the rights of a third person.' Though the defendants have not, by reason of the sublease executed by the occupancy holder, acquired any right as against the superior landlord, yet as between themselves and the occupancy holder, they acquired some interest in the property in question, which could only be put an end to by a notice to quit. It seems to me that the plaintiff having acquired the rights of the occupancy holder under a private sale could not claim any higher right than the occupancy holder himself had.
5. I may add that the question raised before us was fully discussed by Geidt and Mookerjee JJ. in the judgment which they delivered in this case on the 5th July 1904 (1), but which they had to withdraw subsequently by reason of no notice having been served upon the heirs of the deceased respondent, and I may state, without committing myself to saying that I agree in all that they said, that I concur generally in the opinion that was then expressed by them.
6. For these reasons I am of opinion that the view taken by the Court below is not correct and that the suit must fail, no notice to quit having teen given to the defendants.
7. The appellant will be entitled to his costs.
8. I agree with the judgment delivered by my learned brother and would wish to add a few words. It seems to me that the position of the parties in this case differs materially from that of the parties in the case of Peary Mohun Mookerjee v. Badul Chandra Bagdi (1900) I.L.R. 23 Calc. 205. First, as regards the landlord in the earlier case, the under-raiyat was brought face to face with the landlord by reason of the latter's exercising his rights as landlord over the occupancy holding. In the present case the under-raiyat is not so brought face to face with the landlord, but only by reason of the landlord's privately acquiring the rights which belonged to the occupancy raiyat. Next, as regards the under-raiyat himself, in the earlier case he had an option, when the occupancy holding was put up to sale, to save his own rights by purchasing the occupancy holding. But in a case like this, where an occupancy holding is transferred by private sale to the landlord and the under-raiyat may know nothing whatever of the transfer, it is clear that his position would become one full of peril, if his rights were ipso facto destroyed by the private transaction.