B.K. Mukherjea, J.
1. This appeal raises a short and an interesting point of law. The plaintiff's case is that the lands in suit were comprised in four raiyati holdings which belonged to one Lal Mia. The immediate landlord was one Ajijulla Munshi who was the proprietor of the estate within which these lands were situate. On 15th July 1918, Lal Mia got a sikmi taluki right under the proprietor by a patta which was granted by Ajijulla and he became thereby the landlord in respect of the four raiyati holdings held by him. The sikmi taluk was sold at a sale under Regulation 8 of 1819 on 16th May 1931 and the purchaser was the plaintiff. The suit has now been commenced by the plaintiff for recovery of possession of the lands in suit on the ground that he being a purchaser at a sale under Regulation 8 of 1819 and having annulled all incumbrances, Lal Mia had no right to remain in possession.
2. The trial Court decreed the suit in part. It gave the plaintiff a decree with regard to the lands which were recorded in Khatians Nos. 292 and 276, holding that the principle of merger applied and the raiyati interest of Lal Mia in respect of these plots of land merged in the superior rights of a sikmi talukdar on the acquisition of the sikmi in July 1918. With regard to two other raiyati holdings, the suit was dismissed on the ground that Lal Mia had other co-sharers and consequently the principle of merger had no application. Against this decision, an appeal was taken by the defendants to the lower Appellate Court and the Additional Subordinate Judge reversed the decision of the trial Court with regard to the lands of Khatian No. 292 holding inter alia that the principle of merger had no application and the case did not come within the purview of Section 22, Ben. Ten. Act. With regard to the lands recorded in Khatian No. 276, he has held that there is no merger but that the plaintiff is entitled to get khas possession on the ground that the raiyats had really abandoned the holding. Against this decree of the lower Appellate Court, there has been this second appeal preferred by the plaintiff and the appeal is limited to the lands which are recorded in Khatian No. 292.
3. Mr. Sen Gupta who appears in support of the appeal has contended before us that the decision of the Court of Appeal below was wrong and that the case would be governed by Section 22, Ben. Ten. Act. Now, it is quite clear that the lease being an agricultural lease, Section 111 of T.P. Act, has got no application and the case must be decided entirely upon the provision contained in Section 22, Ben. Ten. Act. It is not disputed that prior to the creation of the sikmi taluk, the immediate landlord of the raiyat was the proprietor of the estate and it cannot be said that by the creation of the sikmi the interest of the raiyat and that of the immediate landlord, namely, the proprietor, had coalesced. The immediate landlord did not acquire this interest of the raiyat by transfer, succession or otherwise, but he carved out an intermediate tenure holder's interest and interposed it between himself and the raiyat though in this case the intermediate tenure-holder was no other than the raiyat himself. We think that Section 22, Ben. Ten. Act, presupposes the existence of the superior interest as a separate entity before the act of transfer or succession could effect the merger. In other words, the two interests must have separate existence before the question of merger can come in. Here, before the sikmi patta was executed, the taluki interest into which the raiyati interest is said to have merged had no existence and we are unable to hold that when the immediate landlord simply creates an intermediate tenancy right between him and the actual raiyat, there would be a merger under Section 22 of the Ben. Ten. Act, simply because the intermediate tenant happened to be the raiyat. The view which we are taking is supported by a decision of this Court in Jogendra Krishna Roy v. Shafar Ali AIR 1923 Cal 373 and in that case Sir Ashutosh Mookerjee sitting with Chotzner, J. laid down the law that Section 22 would have no application where the raiyat him. self subsequently takes a tenure holder's right from the immediate landlord.
4. Mr. Sen Gupta has drawn our attention to another decision of this Court [Pat.] in Manners v. Satroghan Das AIR 1916 Pat 369. The facts are not very clear from the judgment and the decision also appears to us to be far from clear. What happened in that case was that there was a certain tenure-holder for a term under the mahanth of an Asthal who created a sub-lease in favour of the appellant Mr. Manners. The interest of the thika tenure holder expired in the year 1304 Fasli and it seems that before that he had transferred by a kobala his right to Mr. Manners. Mr. Manners subsequently took a thika lease himself from the mahanth for a period of 15 years from 1304 to 1318 and as he did not quit the land after 1318, a suit was instituted by the superior landlords. Their Lordships held inter alia that if Mr. Manners was a cultivating raiyat and by taking the thika lease from the mahant he became subsequently a tenure-holder, the entire interest of the landlord and the raiyat having been vested in the same person, Mr. Manners could not have any right to hold the land as a tenant, under Section 22, B.T. Act. It is difficult for us to appreciate the reasoning of this judgment, because it seems in the first place that S, 22 would have absolutely no application to a case like this where the tenure-holder was not a permanent tenure-holder but held his tenure for a term of 15 years only, But leaving aside this point, even if we assume that Section 22 applies, we can justify the decision on the ground that here the raiyati lease came into existence subsequent to the creation of the tenure and by the kobala which the old tenure-holder executed apparently in favour of Mr. Manners, the two interests of the immediate landlord and of the raiyat must have coalesced at that time. The decision is not supported by any reasoning and we prefer to follow the decision of Sir Asutosh Mookerjee in Jogendra Krishna Roy v. Shafar Ali AIR 1923 Cal 373
5. It may be pointed out here that apart from Section 22, Ben. Ten. Act, there is no general law of merger applicable to agricultural tenancies in this country and though the principle of English Common Law was inflexible and applied irrespective of the intention of the parties, in equity it always depended upon circumstances and was governed by the intention of parties or the purpose of justice. In our opinion, it is neither just nor proper to stretch the language of Section 22, Ben. Ten. Act, beyond what it clearly lays down In the above view of the case we dismiss the appeal. There will be no order as to costs.
M.C. Ghose, J.
6. I agree.