1. The plaintiffs-appellants sued the defendants respondents for recovery of khas possession of certain land upon establishment of their raiyati title thereto. The plaintiffs base their title on a raiyati lease of the disputed land granted to them by certain persons who obtained a lease for a term of six years of the Pergannah Gangamandal to which the land in suit appertains. This lease was granted to them by the Official Receiver of the estate. By this lease the lessees covenanted with the lessor, among other things, that they 'will not, save and except for the purpose of granting dur ijara settlements to dur ijaradars or other tenants or persons by means of which the rents of the said Pergannah or the greater portion thereof may be collected as heretofore, assign, underlet nr otherwise part with the possession of the said Pergannah or any part thereof and will not enter into any partnership with any other person or 'persons in respect of the said Pergannah or any part thereof or charge or assign the lessees' interest under those presents or any part thereof without the previous consent of the lessor.' The lower Courts have held that the lease to the plaintiffs in breach of that covenant is void and consequently the plaintiff have no title on which they can support an action in ejectment.
2. On behalf of the appellants plaintiffs it is contended that this lease, even if granted in breach of covenant in the head lease, is not void but voidable at the option of the head lessor, and that a third party cannot challenge the rights of the plaintiffs. This contention seems to be sound. The terms of the head lease give the lessor a right of re entry, and until this right is exercised, the sub-lease granted to the lessees would appear to be valid. In Foa's Landlord and Tenant, 5th Edition, it is stated that 'a very common covenant in leases is one by which the lessee undertakes not to assign or underlet or part with the possession of the premises demised to him, at least without the license or consent of the lessor.' 'When this covenant exists, the landlord's consent must be obtained before an assignment or underlease may be made; nor will the mere fact that the landlord has not objected at the time to the assignee taking possession, be held to amount to such consent. But the assignment itself will not, unless the lease be expressly made to be determinable upon its taking place and the lessor determine it accord ingly, be invalid without such consent.' Here though the lease is made determinable upon the taking place of the breach, the lessor has not determined it and the lease granted to the plaintiffs has not become invalid.
3. It is contended on behalf of the respondents that this is authority under the English Law and the present case is governed by the Bengal Tenancy Act. There is nothing in that Act which goes against the principle there laid down, and the general rights between the lessor and the lessee would govern cases under Bengal Tenancy Act, unless that Act contains anything to the contrary.
4. It is further contended that the lessors of the plaintiffs, being ijaradars, were not tenure holders and had no interest in the property, that they were farmers of rent and that they were, as represented by the learned Vakil for the respondents, only dignified tahsildars.
5. For the appellants, it is pointed out that there is no mention in the lease that the interest created is that of an ijaradar. This point appears to me to be of no importance. By implication the lessees are described as ijaradars, as under the covenant, they have authority enabling them to grant dur ijara leases to dur ijaradars and none but ijaradars can create a dur ijara interest. But there is no settled meaning of the word 'ijara' which would make it inconsistent with the interest of a tenure holder. The usual meaning of 'ijara' is a lease for a term. Though the interest of an ijaradar may be limited to collection of rents, it cannot be held to be so in the present case. It is stated in the lease that 'he, the lessor, doth hereby demise and lease unto the lessees all that Pergannah Gangamondal, etc.' This surely grants to the lessees a greater interest than that of a mere rent collector. Though the subsequent covenant to some extent restricts his rights, the original nature of the interest has not altered from that of a lease holder to that of rent collector. Both the lower Courts have dismissed the suit solely on this issue, the first Court stating that 'as the plaintiffs' suit fails on the decision of these two issues, no further evidence has been recorded'.
6. It is, therefore, necessary that the case should be re-heard on the other points that arise, I accordingly decree this appeal, set aside the decrees of both the lower Courts and remand the case to the Court of the Munsif at Kasba for a rehearing and decision of the other points in this case. Costs will abide the result.