1. This appeal arises out of a suit to eject the defendant, who is found to be an under-raiyat, after service of a notice to quit under Section 49 of the Bengal Tenancy Act.
2. The defendant set up a permanent sublease granted by the plaintiff's vendor and pleaded that he could not be ejected. The Court of first instance held that the plaintiff was bound by the sublease granted by his vendor, and that it was not invalid by reasons of the provisions of Section 85, Clause (2), of the Bengal Tenancy Act, and accordingly disallowed the claim for ejectment. On appeal the learned Subordinate Judge upon a consideration of some decisions of this Court held that the lease was invalid and allowed ejectment. The defendant has appealed to this Court.
3. Section 85, Clause (2), of the Bengal Tenancy Act expressly lays down that a sublease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years.
4. The decisions of this Court, however, upon the questions whether a sub lease granted in contravention of the provisions of Section 85 of the Bengal Tenancy Act is void not only against the superior landlord, but also against the raiyat himself, are not uniform. It has been held in a number of cases that a sub lease granted after the passing of the Bengal Tenancy Act by a raiyat for a term exceeding 9 years and registered in contravention of the provisions of Section 85 is void, and that such a lease is not admissible in evidence to prove the tenancy. In some other cases it has been held that a lease granted in contravention of Section 85 is operative as between the grantor and the grantee. It is unnecessary to refer to the numerous cases on the point. They will be found collected in the case of Telam Tramanik v. Adu Shaikh 18 Ind. Cas. 791 ; 17 C W N. 468 by Carnduff, J. where he dissented from the decision in the case of Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 ; 16 C.W.N. 618 ; 15 C.L.J. 672 to which he was a party; and in the recent case of Chandi Charan Nath v. Somla Bibi 44 Ind. Cas. 254 ; 22 C.W.N. 179 ; 28 C.L.J. 91 one of the learned Judges, Beachcroft, J., reviewed the cases on the point.
5. The cases in which it has bean held that the under-raiyat cannot be ejected under such a lease by his landlord (the raiyat) or that the nader-raiyat can recover possession against his landlord, are cases in which the under-raiyat was defending his possession or seeking to recover possession under a subsisting tenancy. For instance, see Manik Bbrai v. Bani Charau Mondal 10 Ind. Cas. 469 ; 13 C.L.J. 649 and Gonesh Mondol v. Thanda Namasundrari 38 Ind. Cas. 489 ; 24 C.L.J. 539. There ia another class of cases in which the lease was executed before the Bengal Tenancy Act, and, therefore, come under Clause (3) of Section 85, and to which different considerations apply, see Gopal Mondal v. Eshan Chunder Banerjee 29 C. 148 and other cases mentioned in Chandi Charan Nath v. Somla Bibi 44 Ind. Cas. 254 ; 22 C.W.N. 179 ; 28 C.L.J. 91.
6. In the present case the defendant was in possession and was defending his tenancy, but the tenancy was put an end to by a notice to quit under Section 49 of the Bengal Tenancy Act.
7. The lease being invalid according to the provisions of Clause (2) of Section 85, the tenancy could be put an end to by a notice under Section 49, and the defendant not having a subsisting tenancy, he could not rely upon his previous possession.
8. In a recent case, Second Appeal No. 2078 of 1915, decided on the 10th July 1917 Nazir Ali Shikdar v. Banshi Badan Patwari (unreported) 44 Ind. Cas. 254 ; 22 C.W.N. 179 ; 28 C.L.J. 91 where the under-raiyat was served with a notice under Section 49(b), it was held that he could not rely upon any subsisting tenancy though he was the defendant in possession, and that the plaintiff was entitled to khas possession. The present case is covered by that decision.
9. Apart from the cases on the point it has been contended that on principle such a lease should be held to be binding on the lessor on the ground of estoppel. There is divergence of judicial opinion on the point. The general rule is that the principle of estoppel cannot be invoked to defeat the plain provisions of a Statute, and if the contention were given effect to, the provisions of Clause (2) of Section 85, the object of which, as pointed out in Mohendra Nath v. Parbuity Charan Dass S.C.W.N. 136 was to protect the raiyats themselves against the effect of their own improvident acts, would be defeated in every case.
10. The learned Pleader for the appellant has relied upon the leases based on the principle laid down in Walsh v. Lonsdale (1882) 21 CH. D. 9 ; 46 L.T. 858 ; 31 W.R. 109 52 L.J. CH. 2 but those cases can have no application to a case like the present, because there cannot be specific performance of an agreement to grant a permanent sublease to an under raiyat, having regard to the provisions of Clause (2) of Section 85 of the Bengal Tenancy Act.
11. Lastly, it has been contended that there is a special ground of estoppel in the present case as the lessor represented in the lease that his interest was that of a raiyat holding at fixed rates. It is found, however, that the lessor had no such right, and it was at the request of the lessee that such a statement was made in the Pattah. The lessee having knowledge of the true nature of the lessor's title, there is no estoppel and he cannot take advantage of a statement made in the Pattah at his own request.
12. The appeal accordingly fails and is dismissed with costs.