1. The plaintiffs' suit is for recovery of possession of certain land. Mitter, J. agreeing with the Courts below, has dismissed the suit. On this Letters Patent appeal, the learned advocate for the plaintiff contends that in view of Section 85, Ben. Ten. Act defendant 4, who alone contests the suit and contests it in respect of four plots only out of the suit lands is a mere trespasser so far as the plaintiffs are concerned. The plaintiffs are the landlords and defendants 15 to 18 hold the disputed lands as raiyats under the plaintiffs. The tenant defendants defaulted in payment of rent and the plaintiffs, having obtained a decree against them, purchased the disputed land on 23rd March 1922. The case for defendant 4 is that he took settlement of the four plots of land of which he is in possession from one Rupchand, predecessor-in-interest of defendants 15 to 18 by means of a registered patta in the year 1310 B.S., i.e., 1903. No notice has been served on him under Section 167 or Section 49, Ben. Ten. Act.
2. The patta relied upon by the defendant was not produced or proved at the trial though it appears to have been present in Court. The Record-of-Eights, however, described defendant 4 as a korfa tenant on the basis of a. registered patta.
3. At the hearing of this appeal no one appeared to argue the case for the defendants. Mr. Sen for the plaintiffs contends in view of Section 85, Ben. Ten. Act that if the patta of 1903 was for a. longer period than nine years, it is altogether invalid as against the landlord, and that if it was for a period of nine years or less, then it expired in or before 1912 and cannot be set up against the landlords purchase of 1922. The learned Judge has held that even if the term of the patta from 1310 has; expired, the under-tenant must be taken to be holding over and that his interest is an incumbrance which the landlords were bound to annul on notice under Section 167 before they could recover possession.
4. It is certainly suspicious that the registered patta was not properly proved or produced but the assumption may be made in favour of its validity that it did not purport to create a term exceeding nine years. As regards the period from 1912 to 1922, the question is whether Sub-section 1, Section 85 applies to the case:
If the raiyat sublets otherwise than by a, registered instrument, the sublease shall not be valid against his landlord unless made with the landlord consent.
5. On the whole, having regard to the language and the policy of Section 85, I think that it is not open to the tenant to treat himself in 1922 as holding under the registered patta and that the case is within the clause which I have cited. The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind, it being in each case a question of fact what the intention of the parties was. At the common law, if a tenant continues in possession by consent of his landlord, he is deemed prima facie a mere tenant at will. When, however, a tenant pays rent for a period subsequent to the expiry of the original term, the presumption is that he ceases to be a mere tenant at will. In England in the absence of rebutting evidence, the inference arising from payment and acceptance of rent is that the tenancy is a tenancy from year to year, and prima facie, the renewed tenancy is subject to all the terms of the expired tenancy which can be applied to a tenancy from year to year. These doctrines are not. applicable, to their whole extent, to cases under the Bengal Tenancy Act, but in my judgment it is clear on principle that defendant 4 in 1922 was holding under a new agreement and was not holding under the registered patta. The lessor's consent was not given by a registered patta but is to be inferred from the circumstances, from the acceptance of rent and from the conduct of the parties. I think, therefore, that there has been, after the expiry of the original term, a new subletting otherwise than by a registered instrument. If this be so, the tenancy is not valid against the landlords in the absence of proof of the landlords' consent.
6. In these circumstances the appeal must in my judgment be allowed, the decrees of the Courts below must be set aside as against defendant 4 and the plaintiffs must recover in ejectment against him with costs in all the Courts.
C.C. Ghose, J.
7. I agree.