1. This appeal arises out of a suit for declaration of title and recovery of possession of a raiyati holding and for a declaration that the Plaintiff's right thereto was not affected by the decree in Rent Suit No. 418 of 1915, or the sale thereof under that decree. The Appellant purchased the raiyati in execution of the said rent decree for the sum of Rs. 540.
2. The Plaintiff rested his claim to the land on a two-fold basis. He claimed it as the nishkar land of one Tincowrie Mukerji which he had purchased at a road-cess execution sale, and also alternatively by virtue of private purchase from, one Tushtu Das, who held a korpa tenancy of the disputed lands under the Defendants Mustaphis. The trial Court found that the Plaintiff had failed to establish either claim, and dismissed the suit with costs to the contesting Defendant. On appeal the learned Subordinate Judge of Hughly confirmed the finding of the Munsif so far as it related to the lakheraj title, but allowed the appeal so far as the Plaintiff's right by purchase from. Tushtu Das was concerned, and the suit was remanded to the Court of first instance for a finding whether the notice contemplated by Section 158-B(2) of the Bengal Tenancy Act had been served on the co-sharers.
3. Against that order of remand there was an appeal to this Court with the result that by consent of the parties the decree of the lower Appellate Court, so far as it related to the effect of the Defendant's rent decree and directed that the suit, be remanded to the trial Court to be decided in accordance with the directions therein contained, was set aside. As regards the lakheraj title claimed by the Plaintiff the judgment was directed to be treated as final so far as the lower Appellate Court was concerned, and in lieu of the decree and of the portion of the judgment set aside, an order was made under Rule 25 of Order 41 of the Code of Civil Procedure directing the trial Court to determine the question whether notices under Section 158-B(2) of the Bengal Tenancy Act were duly served by the Respondent on the co-sharer landlords. A direction was made that the trial Court would be at liberty to take such additional evidence as the parties might wish to adduce on the point, and it was ordered that the appeal would remain on the file of the lower Appellate Court which on receipt of the finding of the Court of first instance would dispose of the appeal in the usual way and make a decree embodying the decision already arrived at as regards the lakheraj title claimed by the Plaintiff, and the decision which might be ultimately arrived at as regards the effect of the rent decree. Opinion was expressly reserved upon any questions of law arising between the parties.
4. In accordance with these directions the case went back to the trial Court, and the learned Munsif recorded a finding that there was no evidence or materials before him to show that any notice under Section 158-B(2) of the Bengal Tenancy Act was served, and he accordingly answered the question referred to him in the negative. The appeal then came again before the Subordinate Judge, and in the result was partly decreed with proportionate costs, the judgment and decree of the trial Court being confirmed so far as the lakheraj title claimed by the Plaintiff was concerned, and the appeal to that extent being dismissed with proportionate costs, but the Plaintiff's right as purchaser of Tushtu's under-raiyati right to the extent of a 13 annas 4 pies share of the disputed land was declared, and he was given a decree for recovery of possession of that share jointly with the Defendant No. 3 (now Appellant), the judgment and decree of the Court of first instance being to that extent set aside. The Defendant No. 3 then filed this appeal.
5. A preliminary objection has been taken on behalf of the Respondent to the hearing of the appeal on the ground that the Defendant No. 3 having obtained all that he could expect to get and not being in any way aggrieved by the decree, the appeal is incompetent. We do not think there is any substance in this contention. The effect of the decree is that the Plaintiff will get possession of a 13 annas 4 pies share of the disputed land jointly with the Defendant No. 3. Apart from the question raised by the Appellant that his share has been wrongly calculated, we are of opinion that when a person is compelled to hold land jointly with another who he alleges is not his co-sharer, he can hardly be held to be not aggrieved by the decree. The Appellant moreover is forced by the decree to accept the Plaintiff as his under-tenant against his will. We hold accordingly that the appeal is competent.
6. Coming to the merits of the case, the main question involved is, whether the Plaintiff as purchaser of the under-raiyati from Tushtu, who held it under the Defendants who are occupancy raiyats, can maintain this suit. In other words, is the interest of an under-raiyat transferable in law? The learned Subordinate Judge has observed that 'no tangible and satisfactory evidence was given or offered to show that Tushtu's interest was transferable.' He has, however, referred to several cases and held that there m no authority for the view that the interest of an under-raiyat is not transferable. He is of opinion apparently that there is no difference as regards transferability between an occupancy right and the right of an under-raiyat. In support of this view he has relied upon Section 183, Bengal Tenancy Act which enacts that an under-raiyat may by custom or usage acquire right of occupancy. He has, therefore, come to the conclusion that the interest of an under-raiyat is transferable with the consent of the landlord and that consequently none but the landlord can question the validity of the transfer. On the facts of this case he has held that the Defendants as purchasers of the under-raiyati in execution of their decree for rent against Tushtu which, according to him, passed the right, title and interest of the judgment-debtor, cannot question the transferability of the under-raiyati or the Plaintiff's title by private purchase from Tushtu, but as landlords they are entitled to do so. As one of the Defendants, viz., Defendant No. 3, the appellant, has appeared and contested the suit, he has dismissed it as against him and decreed it as against the other Defendants who have not appeared. The learned vakil for the Plaintiff-Respondent has adopted the same line of argument and urged that the right of an under-raiyat is transferable with the consent of the raiyat.
7. The scheme and policy of the land laws of Bengal is to originally divide persons having interest in agricultural land into two classes, viz., those in actual occupation or cultivating tenants and those entitled to rent from such tenants. There may be several degrees of rent-receivers, but there is one class of cultivating tenants who are called raiyats. In theory the raiyat is supposed to be in actual occupation of the land and actually cultivating it. By virtue of this character, the raiyat is permitted to acquire a right of occupancy, or the right to remain in occupation of the land. It was found that in every case it was not possible for the raiyat to cultivate the land himself and he was allowed to cultivate it by hired labourers or by under-tenants. Baboo Dhunput Singh v. Baboo Gooman Singh  W.R. Act X Rule 61. 'He must hold land under cultivation either by himself or others who must take from him under his supervision as a superior cultivator;' Ram Munqul v. Lukhee Narain  1 W.R. 71 and Karoo Lal v. Luchmeeput  7 W.R. 15. Though he is allowed to sub-let in the eye of law, the raiyat is the actual occupant of the land, occupying it through his lessee, as by sub-letting he does not become a middleman, Kalee Churn v. Ameerooddin  9 W.R. 579. The under-raiyat accordingly did not stand on a much higher footing than hired labourers and the raiyat is supposed to be cultivating the land through his under, raiyat. Such was the status of the under-raiyat though under the old law he could acquire a right of occupancy in lands sub-let to him otherwise than for a term or from year to year (Section 6, Act X of 1859), but ordinarily he could not do so as his sub-lease was generally for a term or year to year : Domunoollah v. Mahmoudie Nushyo  11 W.R. 556. The Bengal Tenancy Act, however, has been less favourable to an under-raiyat and has taken away his right of acquiring a right of occupancy under any condition except by local usage or custom. He is no better than a tenant-at-will with no tangible interest in the land except that of holding it till the end of the agricultural year When it was held under the old law, which was more partial to the under-raiyat, that his interest is not saleable there is less reason to suppose that it is so under the Bengal Tenancy Act. There is ample authority for the view that the right of an under-raiyat is not transferable, Akhil Chandra v. Hasan Ali  19 C.W.N. 246, Amirannessa v. Jinnat Ali  42 Cal. 75 and Bishambhar v. Nasarat Ali  32 C.L.J. 46. See also Yakub Ali v. Mea Jan  43 Cal. 164 and Gopal Mondal v. Tapai Sankhari  46 Cal. 43. It is now settled law that the interest of an under-raiyat is not heritable; Arip Mondal v. Ram Ratan  31 Cal. 757, Jamini v. Rajendra  11 C.W.N. 519 and Meher Ali v. Kalai Khalasi  27 C.L.J. 579. It may not be wrong to say that one of the ordinary incidents of a transferable interest is its heritability. It has again been held that an under-raiyat cannot maintain a suit for possession based upon title, but can recover possession on the strength of his previous possession. Beni Madhab Christian v. Raj Chandra  14 C.W.N. 141 and Gour Mandal v. Balaram Manji  22 C.W.N. 61. It is not necessary for us to consider how far these decisions can be supported, as according to the view consistently held by this Court, mere previous possession, unless perfected into adverse possession, cannot form the foundation of a suit for recovery of possession. But these cases show that the right of an under-raiyat is so unsubstantial that it gives him no title to recover possession even from a trespasser.
8. For the view that the right of an under-raiyat is transferable with the consent of the superior holder, the raiyat, reliance has been placed on the case of Bonomali v Koylash  4 Cal. 135. The head-note of the case is not quite consistent with the decision, for one of the learned Judges. Jackson, J., in the course of his judgment observed : 'I would only add that I never heard before that the question as to the possibility of selling a korfa tenant's right could be raised, and it appears to me to be contrary to the nature of things that such a thing could happen.' It is worthy of note that this was the view held of the law before the Bengal Tenancy Act. Garth, C.J., confined his decision to the facts of that case which was a suit against the raiyat. That decision, moreover, does not support the Respondent's contention that an under-raiyati is transferable with the consent of the raiyat. According to the head-note, it lays down the contrary proposition that it is not transferable without the consent of the raiyat. If it is not transferable without the consent of the raiyat, it does not necessarily or logically follow that it is transferable with his consent. The reason is that the transfer of an interest, which is not transferable in law may be binding on various legal grounds on a person having the right to challenge the validity of the transfer. It is attempted in this connection to establish an analogy between an occupancy right and the interest of an under-raiyat. As has been observed in Amirannessa v Jinnat Ali  42 Cal. 75, every right is not transferable and as remarked in Akhil Chandra v. Hasan Ali  19 C.W.N. 246, an under-raiyati is not ipso facto transferable. In the Special Bench case of Chandra Benode v. Alia Bux A.I.R. 1921 Cal. 15, it was held on a reference to several sections of the Bengal Tenancy Act that the law recognised the transferability of an occupancy right though subject to certain qualifications. In the case of an under-raiyati, the Bengal Tenancy Act is not only silent regarding its transferability, but affords sufficient indications to the contrary. It is contended that as an under-raiyat may by custom acquire a right of occupancy, he should be placed, so far as the present question is concerned, on the same footing, as an occupancy raiyat. We are unable to discover how this provision will help to place an under-raiyat, who has not acquired a right of occupancy by custom on the same level with an occupancy raiyat. Besides, if it is loosely said that the interest of an under-raiyat is transferable with the consent of his landlord, it may not necessarily indicate the transferability of such an interest. It may signify that the landlord is willing to accept the transferee as his tenant in lieu of the old tenant practically a case of fresh settlement.
9. But conceding the correctness of this proposition of law which has found favour with the learned lower Court and has been strenuously maintained by the learned vakil for the Respondent, it is difficult to see how it can be applied to the facts of this case. The Plaintiff purchased the under-raiyati in 1911, while the Defendants purchased it at an auction sale in 1916. It is not the plaintiff's case, nor is there any evidence or finding that the Defendants consented to the sale to the Plaintiff, But it is argued that the conduct of some of the Defendants in not appearing in the suit and contesting the Plaintiff's claim is tantamount to consent. We fail to appreciate the logic of this argument. Even if express consent were given by some of the Defendants long after the Plaintiff's purchase, it could not be said that the sale to the Plaintiff was with the landlord's consent; at most it might amount to recognition of the Plaintiff by the non-contesting Defendants. But this theory too cannot be sustained on the facts of this case. The rent suit was brought to which all the Defendants including the absent Defendants were parties against Tushtu, thus negativing any suggestion that they ever consented to the transfer by Tushtu to the Plaintiff, or that they ever recognised the Plaintiff as their tenant or the transfer to him. Moreover, it is the Plaintiff's case that he was dispossessed by Defendants Nos. 1 and 3.
10. Lastly, it is attempted to invoke the principle of estoppel. It is said that, as the Defendants themselves purchased the under-raiyati in execution of their decree, they are estopped from denying the transferability of the under-raiyati. The law of estoppel is contained in Section 115 of the Evidence Act. It is not the Plaintiff's case that he was misled by any act or word of the Defendants in purchasing the under-raiyati. Subsequent conduct or word cannot operate as estoppel; Asmutunnessa v. Harendra Lal  35 Cal. 904. But it is submitted that the question of transferability of the under-raiyati does not arise in this case between the Plaintiff who is a purchaser from the under-raiyat and the Defendants who are purchasers of the same under-raiyati in execution of a decree. In support of this contention reliance has been placed on the case of Ayenuddin v. Sirish Chandra  11 C.W.N. 76. That case has no bearing on the present question, as it is related to an occupancy right transferable with the consent of the landlord. It was discussed and distinguished in Asmatunnessa v. Harendra Lal  35 Cal. 904. The authority of Lala Deosaran v. Bateshwar Mandal  23 C.L.J. 559 has been rightly questioned by the learned Subordinate Judge in view of the decision in Kanchan Mandar v. Kamala Prashad  21 C.L.J. 441. We agree with the view taken by the learned Subordinate Judge that the defendant in the capacity of landlord is entitled to question the validity of the sale of the under-raiyati to the Plaintiff. In this view of the matter the learned Subordinate Judge has dismissed the Plaintiff's suit to the extent of the share of the Defendant No. 3. The logical result of his findings is that the under-raiyati in this case is not transferable and that the Defendant No. 3 as a landlord is entitled to question the Plaintiff's right as purchaser from Tushtu. We think that the learned Subordinate Judge is right in these findings and there being no cross-appeal by the Plaintiff they must be taken to be correct. The only point on which we differ from the Court below is its view that an under-raiyati is transferable with the consent of the superior holder, and that the Defendants Nos. 1 and 2 not having contested the suit the Plaintiff is entitled (it is not stated upon what specific ground) to a decree to the extent of the interest of those Defendants in the holding. The present suit is for declaration of title and recovery of possession. In our opinion the Plaintiff has failed to prove his title and is therefore not entitled to any relief. In view of the opinion we have formed on the question of Plaintiff's title, it is not necessary to consider the other points urged by the Appellant.
11. The result is that the appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs of all the Courts to be paid by the Plaintiff to Defendant No. 3.