1. This appeal arises out of a suit for khas possession of 2 1/2 bigha of land. The plaintiff is a superior landlord; under him was a tenant who has been found to have been a raiyat holding at fixed rates. The plaintiff obtained a decree for arrears of rent against his raiyat and in execution of that decree put up the holding to sale and purchased it himself. The defendants in the suit are the successors in interest of a person to whom a permanent lease had been granted by the plaintiff's tenant.
2. The Munsif dismissid the suit in so far as it was a suit for ejecting the defendants and granted the plaintiff a decree merely declaring his title.
3. On appeal the plaintiff succeeded in getting a decree for recovery of khas possession.
4. The main question that arises in this appeal is whether Section 15 of the Bengal Tenancy Act applies to a lease by a raiyat holding at fixed rates, or in other words, is Section 85 controlled by sections 11 and 18 of the Bengal Tenancy Act? This again depends on whether the term 'transfer' in sections 11 and 18 of the Bengal Tenancy Act includes a lease. The view taken by the District Judge finds some support in the decision of a Bench of this Court in the case of Parushulla Sheikh v. Sital Chandra Das 28 Ind. Cas. 267 :19 C.W.N. 1110. A contrary view was taken by another Bench of this Court in the case of Hari Mohan Pal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127. In the former case the question of the validity o the lease had only to be decided as between a grantor and grantee. It was, therefore, unnecessary in that case to decide whether the transfers, contemplated in sections 11 and 18 included partial transfers by way of sub-leases. In the latter case, however, the question as to the meaning of the term 'transfer' in Section 18 distinctly arose and its decision was necessary for the decision of the case which was one, like the present case, between a superior landlord and a person holding a sub lease from a raiyat at a fixed rate of rent. I quote the following lines from the judgment of the learned Judges in that case:
The Court below has held that the term 'transfer' as used in Section 11 or Section 18 does not include a lease. In our opinion there is no foundation for this view. A lease is a transfer of an interest in immoveable property and there is no good reason why a permanent tenure-holder or a raiyat at fixed rate of rent should be held competent to alienate absolutely the tenure or holding, and at the same time be deemed to be under a disability in so far as the grant of a sublease is concerned, The Court below has held that if this view is adopted, Section 85 cannot be reconciled with Section 18. But it is plain that the proper method of construction is to hold that the provisions of Section 85 are subject to those of Section 18, in other words, that Section 85 has no application to a case where 1 Section 18 applies.
5. Following that decision I must hold, in the present case, that the learned District Judge was wrong in holding that the sub-lease to the defendants' purchaser was governed by the provisions of Section 85 and as the sub-lease was said to be perpetual, it could not operate to protect the under-raiyat against the landlord of his landlord. If Section 85 has no application, it follows that the defendants in the present case have a subsisting under raiyati interest. It was contended that as the landlord was himself the purchaser at the auction-sale in execution of a decree for arrears of rent, no notice under Section 167 was necessary. In support of this view the case of Peary Mohun Mookerjee v. Badul Chandra Bagdi 28 C. 205 : 5 C.W.N. 310 is cited in the judgment of the lower Appellate Court. But that was a case in which the under-raiyat's lease was invalid by reason of Section 85 of the Bengal Tenancy Act. If the sublease was not invalidated by Section 85 and the right under it is subsisting, the interest of the person holding under that lease is an encumbrance, which must be avoided before the purchaser at the auction-sale, even if he be the superior landlord, can take khas possession.
6. Another point taken was that, as the defendants in the present case claimed their right by inheritance from the original lessee and as that lessee's interest was that of an under raiyat, they had inherited nothing, but the decision in the case of Abjan Bibi v. Raham Ali 31 Ind. Cas. 26 : 20 C.W.N. 756 : 22 C.L.J. 232 shows that the interest created by a sub lease granted by a raiyat does not necessarily terminate on the death of the lessee. If, under the terms of the lease, the interest is continued after the raiyat's death and if the lease is a valid lease under the law, that interest can be inherited.
7. I may further point out that in the case of Hari Mohan Pal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127 it was held that the interest created in favour of the under-raiyats was an interest liable to be avoided when a sale is to be held of the interest of the superior landlords. This fortifies my view that the interest of the defendants was voidable and not a void interest.
8. For these reasons I must allow this appeal and reverse the finding and decree of the lower Appellate Court and restore the decree of the Court of first instance.
9. The appellant will get her costs in this Court and also in the lower Appellate Court.