Salil Kumar Datta, J.
1. This is an appeal by the defendant against a judgment of affirmance. The plaintiff instituted the suit on the following allegations: The suit land covered by C. S. Dags 171, 172 and 173 measuring .97 decimals khatian No. 65 published under the Non-agricultural Land Assessment Act (Bengal Act XIX of 1936). situate Mouja Manirampore P. L. S. Barrackpore within North Barrackpore Municipality, with structures on portion of dag No. 171 belonged to the plaintiff. The structures and land appertaining thereto measuring .10 decimals are recorded as R. S. dag Nos. 171/198 and 171/199 which are in khas possession of the plaintiff. The remaining land with tank recorded in dag No. 172 measuring .20 decimals. Pahar of Tank recorded in day No. 173 measuring .08 decimals and the remaining portion of dag No. 171 measuring .59 decimals, in all .87 decimals was settled by the plaintiff with the defendant at a monthly rent of Rs. 10-6-8 p. or annual rent of Rs. 125/-for three years from Sravan 1358 B. S. to Asarh 1361 B. S. and an unregistered kabuliyat was executed by the defendant. The plaintiff held the land under the Collector of 24-Parganas as a non-agricultural tenant for period certain upto1972 and the defendant was also a non-agricultural tenant under the plaintiff under, the provisions of West Bengal Non-agricultural Tenancy Act and since 1358 B. S. he had been holding the land as a lessee without a lease in writing the kabuliyat being unilateral and unregistered. The defendant not having paid the rent, the plaintiff filed a suit being Money Suit No. 97 of 1957 against the defendant in the Second Court of the Munsif at Sealdah for arrears of rent upto Sravan 1364 B. S. which was decreed on admission. The plaintiff being in need of the suit land served through his lawyer a notice to quit dated April 12, 1958 determining the tenancy with the month of Asarh 1366 B. S. the tenancy being from Sravan to Asarh and the notice was duly served. The defendant however failed to comply with the said notice and his possession from Sravan 1, 1360 B, S. has been that of a trespasser. The defendant was in arrears of rent for 23 months from Bhadra 1364 B. S. to Asarh 1366 B. S. amounting to Rupees 239-9-4 p. The plaintiff's interest being 'dakhalkar' under the Collector, his estate has not vested in the State. The plaintiff accordingly prayed for a decree of khas possession of the suit land on eviction of the defendant therefrom also for rent as aforesaid and mesne profits.
2. The suit was contested by the defendant who filed a written statement contending inter alia that the suit was not maintainable and that the notice was not valid, legal or sufficient. It was averred that his tenancy was for .97 decimals of land though the plaintiff surreptiliously dispossessed the defendant from .10 decimals of land and got it recorded as his khas land. The money suit was for the entire tenancy. The plaintiff had no necessity for the suit land as alleged. The defendant took settlement for agricultural and horticultural purpose and for rearing fish and his tenancy was accordingly governed by the Bengal Tenancy Act and the defendant was thus a permanent agricultural tenant having non-ejectable title. The tenancy was never a non-agricultural tenancy, and was not governed by the West Bengal Non-agricultural Tenancy Act and having occupied the land for over 12 years from 1360 B. S. the defendant had acquired a right of occupancy in the suit land. The defendant had made considerable improvements in the suit land and his name was recorded in R. S. settlement as Dakhalkar tenant. It was also alleged that the tenancy was according to Bengali calendar year from Baisakh to Chaitra and the notice was accordingly not legal valid or sufficient. For these reasons the defendant submitted that the claim for recovery of possession and mesne profits should be dismissed.
3. On a trial on evidence the learned Munsif decreed the suit and an appeal therefrom was dismissed. It was hold that the tenancy of the plaintiff who was recorded as 'Dakhalkar' raiyat under the Collector in record-of-right. was governed by the Non-agricultural Tenancy Act and rent in respect thereof was assessed in accordance with the provisions of Bengal Non-agricultural Land Assessment Act, 1936. The defendant being a tenant under the plaintiff must be governed by the same Act which governs the head tenancy of the plaintiff. The entry in the settlement record about the defendant's tenancy showed him as a dakhalkar tenant and the presumption of the entry has not been rebutted by the defendant. There is no paper on the aide of the defendant to show that his tenancy was governed by the Bengal Tenancy Act. Even though the lease was taken for growing vegetable and rearing fish, it would not necessarily imply that the tenancy was for agricultural purpose. It was held that the notice was legal and valid and duly served. The Courts further held that there was nothing to show that the interest of the plaintiff was that of a tenure-holder or raiyat and the question of vesting the plaintiff's interest in State did not arise. By a concurrent judgment the appellate Court affirmed the decree passed by the trial Court The present appeal is against this decision.
4. The area of the defendant'stenancy was not disputed at the hearing which, as we have seen, was confined to .87 decimals of land as stated in the plaint. It appears on basis Exhibit 2 (a), certified copy of C. S. record relating the plaintiff's khatian No. 65 that the land of dags-- 173, 172, 171 was held by the plaintiff under the State of West Bengal as dakhalkar from April 1, 1942 to March 31, 1972. and rent being assessed under Non-agricultural Land Assessment Act, 1936. The suit land held by the defendant has been recorded in the B. S. record in khatian No. 956 at an annual rent of Rs. 125/-. his interest being recorded as dakhalkar (Ext. 2). while .10 decimals of land held in khas by the plaintiff has been recorded in the said settlement in khatian No. 806 (Ext. 4) as dakhalkar basat praja. The Courts below on the above documents have held that the plaintiff's interest in the said lands was that of a non-agricultural tenant. The defendant's interest being subordinate to the plaintiff's interest and as also recorded in the relevant settlement record was also that of a non-agricultural tenant and the presumption arising therefrom has not been rebutted.
5. Mr. Nepal Chandra Sen, learned Advocate appearing for the appellant has contended with great emphasis thatno presumption of correctness of entries of C. S. settlement record attaches to non-agricultural lands as the Bengal Tenancy Act. 1885 does not apply to the non-agricultural lands and mere assessment to rent under the Bengal Act XIX of 1936 raises no presumption of the land being non-agricultural and further 'dakhalkar' is a word unknown in the said Act.
6. Chapter X of the Bengal Tenancy Act. 1885 relates to survey and Preparation of record-of-rights but under Section 101 (11 provisions of Sections 104 to 105A. 109C. 109D, 110. 112 are not to apply in respect of any lands which are held by a non-agriculturist and not used for purposes connected with agriculture. The prescribed particulars to be recorded as may be required in Government order under Sub-section (2) of Section 101 relate to the occupant, the landlord and the tenancy about lands not used for purposes connected with agriculture or horticulture. Under Section 103B (5) every entry in a record-of-rights finally published under this Chapter shall be presumed to be correct until proved by evidence to be incorrect. Accordingly it is obvious that the presumption of correctness under the Bengal Tenancy Act attaches to lands used for non-agricultural purpose relating matters aforeasaid. Similar correctness attaches to the entries prepared under the West Bengal Estates Acquisition Act, 1953 under its Section 44(4) which extends to non-agricultural land under terms of Section 39. In C. S. record the plaintiffs name in Khatian 65 and the defendant's name in the current settlement prepared under the West Bengal Estates Acquisition Act relating the suit land is recorded as Dakhalkar. This term has no reference to a raiyati holding and accordingly refers in respect of land comprised therein, to a non-agricultural land. The statutory presumption of correctness accordingly attaches to the land in question and the same as has been found by the Courts below, has not been rebutted insofar as the interest of the plaintiff is concerned.
7. As to the assessment under the Bengal Non-agricultural Lands Assessment Act, 1936 it appears that the Act provides for assessment of land revenue of lands not used for agricultural purposes in temporary settled estates. There is no dispute that the lands of Khatian 65 were settled by the Collector for thirty years thereby making it a temporary settled estate and the assessment of rent under the said Act under Sections 3 and 9 implies that the land was settled under a non-agricultural tenancy.
8. Mr. Sen has contended that the suit land was settled with the defendant for purposes of agriculture and he hasreferred to the kabuliyat dated September 16, 1951 executed by the defendant In favour of the plaintiff (Ext. 5) and the corresponding pattah (Ext. A). The said deeds mention that the land was being taken in settlement for growing vegetables on the land and for rearing fish in the tank. These documents are otherwise inadmissible for purposes of creating a demise of over one year being unregistered but can be looked into for collateral purpose. The purpose of the settlement as appears therefrom was agricultural and in fact this has not been denied by the plaintiff.
9. The point now comes in for determination is if the tenancy of the defendant, though for agricultural purposes, is in law a non-agricultural tenancy on the ground that the lease of the plaintiff as the head lessee and lessor of the defendant is a non-agricultural tenancy. Or, if such tenancy being for agricultural purpose is one governed by the Bengal Tenancy Act. in which case, it is contended, the plaintiff's interest would vest in the State leaving the defendant a direct tenant under the Slate in respect of the suit lands.
10. In Babu Ram Roy v. Mahendra Nath Samanta, (1904) 8 Cal WN 554 -- it was held by Sarada Charan Mitra. J. as follows :
'...... The holding of the plaintiffis agricultural; therefore he is a raiyat as defined in Section 4 of the Bengal Tenancy Act. The defendants are under-raiyats. that is to say tenants holding immediately under a raiyat. Section 49 lays down special rules as to the ejectment of under-raiyats by raiyats landlords. Act VIII of 1885 was passed for the protection of raiyats as well as under-raiyats; and if a raiyat holds land partly agricultural and partly homestead, the incidents of the holdings would regulate the incidents of the sub-lease created by the raiyat. The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act or the other would apply we have to look to the nature of the original tenancy and not the nature of the tenancy with reference to a particular piece of land within the landlord's holding. Otherwise the result would be anomalous. As between the landlord and raiyat and under-raiyat the rights and obligations would be regulated by Section 55 of the Bengal Tenancy Act and it is difficult to suppose that the intention of the law is that as between the raiyat himself and the under-raiyat the relationship would be regulated by a different Act altogether.'
This decision was upheld by the Letters Patent Bench which heard the appealtherefrom. The decision enunciated the proposition of law. as stated in Arun Kumar Sinha v. Durga Charan Basu 45 Cal WN 805 = (AIR 1941 Cal 606) that where the lands in the holding of an agricultural raiyat consisted partly of agricultural land and partly of homestead lands, and the portion which could be used as homestead was let out for residential purposes the under-tenant would be an under-raiyat within the meaning of the Bengal Tenancy Act and the provisions of the Transfer of Property Act would not be applicable.
11. The above view has been consistently followed in decisions subsequent to Babu Ram's case (1904) 8 Cal WN 454 and in Kinuram Sadhnkhan v. Hazi Md. Yusuf. (1959) 63 Cal WN 939. it was observed by Lahiri. J. (as his Lordship then was) as follows:
'..... if the head lessee be a raivatthe under-lessee will be an under-raivat under the Bengal Tenancy Act. no matter whether the under-raiyat holds the land for agricultural or non-agricultural purposes.'
12. Mr. Sen however contended that though an under-lease held under an agricultural tenancy would be governed by the Bengal Tenancy Act. the converse is not the position in law, so that an agricultural under-tenancy would be governed by the Bengal Tenancy Act, even though the head lessee himself holds the land in non-agricultural tenancy. In support he relied on the Bench decision in Abdul Hossain v. Shalimar Paint Colour and Varnish Co. Ltd. ILR (1954) 2 Cal 642 = (AIR 1947 Cal 36) in which it was observed that the decision in Babu Rani's case should be followed on the principle of stare decisis in cases exactly of the same type and in a case of a converse type it would not be applicable. It was observed :
'The observation, namely, that the same Act -- either the Bengal Tenancy Act or the Transfer of Property Act --which governs the head-lease must also govern the sub-lease, cannot in our judgment be taken to be a sound general proposition. Section 117 of the Transfer of Property Act would directly go against the proposition stated in the general form, for. if the lessee of a parcel of land let out to him for building purposes sublets not for a fixed period of time a portion to another for the express purpose that the latter would himself cultivate it. the sub-lessee could be elected on a six months' notice on the view that the Bengal Tenancy Act was not applicable to the sub-lease as that Act would not be applicable to the head-lease, but Section 117 of the Transfer of Property Act would exclude such a sublease from the operation of Section 106 which is in Chapter V of the Transferof Property Act. because the purpose of the sub-lease would be taken to be an agricultural purpose within the meaning of that section, as the sub-lease was taken in order that the sub-lessee may himself cultivate it and not by the agency of his tenants. The extension of Babu Ram Roy's case to a converse case would thus directly infringe Section 117 of the Transfer of Property Act.'
In this case the head lessee company purchased occupancy rights in small parcels from raiyats with the object of establishing a factory and thereafter took mokarari mourashi lease in respect of such lands from superior landlords. A portion of the land was settled with the tenant for the purposes of cultivation and he actually grew paddy on the lands. The terms of mokarari mourasi lease were such that the company could use the land in whatever way it liked and could even settle such lands with tenants for purposes of cultivation. It was held that the company thereby became a tenure-holder and the purpose of the lease given by it to a sub-tenant must prima facie regulate the incidents of the sub-tenancy which makes the sub-tenant a raiyat entitling him to all safeguards against ejectment under the Bengal Tenancy Act. Accordingly the sub-tenant could not be ejected on grounds mentioned in the plaint which is the expiry of the lease.
13. Facts in Abdul Hussain's case are similar to those of the case before us only in respect of the creation of an under-tenancy for agricultural purpose by a non-agricultural tenant. The head lessee in the present case as we have seen held the land for non-agricultural purpose and his tenancy was periodic expiring with March 31, 1972. though it might be subject to renewals. It is obvious that a person cannot grant any right or interest in immoveable property beyond what he himself is possessed of in such property. When a land is settled for non-agricultural purpose in periodic tenancy it would not be competent for such lessee to create a lease subordinate to him whereby the under-lessee would acquire such rights in the land which even his lessor the head lessee does not possess. Creation of an under-raiyati under the Bengal Tenancy Act confers on the under-raiyat rights as provided in its Chapter VII and under proviso to Section 48-C. such under-raiyat would acquire by twelve years possession a non-ejectable right in the land settled. Such right is not even possessed by the Head lessee of the land and any such grant would therefore be incompatible and inconsistent with the rights of the head lessee and beyond his competency. In Abdul Hossain's case we have seen that the head lessee subsequently acquiredpermanent rights in the land with further right to use the land in any manner he elected, which right is singularly absent in the present case. The principle of law laid down in the said decision is thus not applicable to the facts of the present case. It could not be said in this state of affairs that there could be a valid agricultural tenancy under the Bengal Tenancy Act created in favour of the defendant. The defendant's tenancy was and continued to be a non-agricultural tenancy till its determination though the defendant was given license to carry on agricultural operations in the suit property.
14. The interest of the plaintiff isthat of an non-agricultural tenant, as wehave seen. Under the West BengalEstates Acquisition Act interest of an intermediary vests in the State and an intermediary does include a non-agricultural tenant. Accordingly the plaintiff'sinterest has not vested in the State andhe is entitled to maintain the instant suitfor recovery of possession. The legalityof the notice and its service have notchallenged at the hearing.
15. The appeal in the circumstances fails and is dismissed without any order as to costs. Before concluding the Court records its appreciation of the ability and thoroughness with which the case was conducted by Mr. Nepal Chandra Sen. learned Advocate on behalf of the appellant.
16. Leave under clause 15 of the Letters Patent as prayed for. is granted.