1. This appeal involves an interesting question of the tenancy law which does not seem to be covered by any authority. The plaintiffs are the owners of Touzi No. 1342 of the Noakhali Collectorate, in which a permanent tenure was . held by one Basanta Kumar Mukherjee. The tenure was recorded in the Record of Rights as a permanent tenure, the rent of which was liable to be enhanced. The plaintiffs brought a suit against Basanta for enhancement of rent. That suit was compromised and in execution of the decree the plaintiffs purchased the tenure in 1913. It appears that in 1900 Basanta had granted permanent mukarrari leases to some of the defendants. In 1925 the plaintiffs brought the present suit for enhancement of rent of the defendants who are Osat talukdars and for recovery of arrears of rent at an enhanced rate. Both the Courts below have held that the plaintiffs are not entitled to claim enhanced rent from the defendants for the Osat taluk but have allowed a decree to the plaintiff's in respect of arrears of rent at the old rate of rent.
2. The plaintiffs have appealed and two points have boon raised on their behalf. In the first place it is argued that the mukarrari Osat taluks created by Basanta are not binding upon the plaintiffs inasmuch as Basanta who was a nonmukarrari tenure-holder could not create a mukarrari under-tenure, or in other words, he could not confer upon his tenants a higher right than what ho himself possessed. The Courts below have relied upon Section 179, Ben. Ten. Act, in support of their view that a permanent tenure-holder is entitled to create a mukarrari under-tenure which will be binding upon the purchaser of the tenure unless annulled under Section 167, Tenancy Act. In my judgment the view taken by the lower Courts is correct.
3. That the mukarrari Osat taluk created by Basanta is an incumbrance is not disputed. The only point on which the parties are at variance is whether Basanta had a right to create a mukarrari under-tenure. The term incumbranee as defined in Section 161 is wide enough to include any interest in the tenure which the tenure-holder has the right to create. It means any lien, or sub-tenancy, easement or other right or interest created by the tenant on his tenure or in limitation of his own interest therein. The wording of the section is wide enough to include any interest mukarrari or otherwise which of course is within the competence of the tenure-holder to create. Section 179 says:
Nothing in this Act shall be deemed to pre-went a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease.
4. Now the section does not specifically say that a holder of a permanent tenure granting a permanent mukarrari lease must himself be a mukarraridar. The absence of this qualification in Section 179 lends support to the view that the legislature did not intend to control the power of a permanent tenure-holder to create any kind of under-tenure including a mukarrari lease. A permanent tenure has been defined in Section 3 (8) of the Act before its amendment in 1928, as a tenure which is heritable and which is not held for a limited time. A permanent tenure therefore need not imply that the holder of a permanent tenure must himself be a mukarraridar. The rent of a permanent tenure-holder may be liable to enhancement but his power to create a mukarrari under-tenure is not restricted, for the grant of a permanent mukarrari lease by a permanent tenure-holder is binding between the parties and signifies that the permanent tenure-holder shall never be able to demand enhanced rent, or that in so far as he is concerned, the rent is fixed in perpetuity. Such under-tenure is a right or interest created by the tenant on his tenure' and it is also 'in limitation of his own interest therein.'
5. Mr. Bose has referred to Section 85, Ben, Ten. Act, and has argued upon the analogy of that section that a inukarrari under-tenure created by a non mukarrari tenure holder is not binding upon the landlord. The analogy does not hold good for two reasons. In the first place, Section 85 says in clear words 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. The latter qualification does not appear in Section 179. In the second place, Section 179 excludes application of the Act including Section 85 to a permanent mukarrari lease granted by a permanent tenure holder.
6. The result no doubt is not a very happy one. A permanent tenure-holder, who has himself a non mukarrari right is able to create a mukarrari under-tenure which becomes binding on the landlord. But no one is to blame for the unhappy result more than the plaintiff himself. Section 167 is intended to offer a choice to the purchaser of a tenure under a rent decree either to accept the under-tenure or to 5ivoid it within a year--a period sufficient to enable the purchaser to make up his mind, and, if he so desires to clear the tenure of all incumbrances created upon it by the tenant. If the purchaser does not exercise the right to annul the incumbrances within the time allowed by law, it must be presumed that he intends to adopt the under-tenure or any other incumbrance created by the last tenant. In the present case it appears that the plaintiffs did not take steps to avoid the under-tenures, or to claim enhancement of rent against the defendants for about 12 years. There is nothing in the law to enable the purchaser of a tenure to assert that he is not bound by some of the incidents of an under-tenure which he has failed to avoid under Section 167. He cannot adopt the under-tenure in part and decline to be bound by the entire rights created by the permanent tenure-holder. In this view it seems to me that the plaintiffs have no right to claim enhanced rent from raukarrari Osat talukdars.
7. The next point taken on behalf of the appellants is that the lower appellate Court should have come to a decision whether the lands in Schedule Ka were or were 'not included within the plaintiffs' touzi. The learned District Judge has left the question open observing that it is not necessary to decide it in the present suit, for in the first place the suit is for enhancement of rent and no question as to the extent of the under-tenure is in issue; and in the second place the persons interested in the touzi in which, the defendants say, a portion of the land falls, are not parties to the suit. The view seems to be reasonable and must be upheld. The plaintiff's in their plaint say that the defendants are holding the Osat taluk under their touzi including the lands in Schedule Ka. The defendants state in their defence that the lands are not included therein. But this is a matter which cannot be brought into controversy in the present suit. The defendants are holding the Osat taluk under the plaintiffs at a fixed rent of Rs. 50 and they are bound to pay that rent to the plaintiffs, whatever be the extent of lands in their occupation. Mr. Bose argues that if it is found that portions of the lands within the Osat taluk-are not held in the plaintiffs' touzi then the plaintiff's would be entitled to claim enhancement of rent in respect of that portion. This argument has no force in view of the plaintiff's own case.
8. The result is that the appeal is dismissed with costs.