1. The question of law which falls for determination in this appeal is whether an under-raiyat who has acquired a right of occupancy by custom can successfully resist a suit for eviction brought at the instance of the landlord of the raiyat who has purchased the raiyati holding in execution of a decree for arrears of rent, where the under-raiyati interest was created otherwise than by a registered instrument without the consent of the landlord and is in contravention of Section 85 (1), Ben. Ton. Act, as it stood before its amendment by Act 4 of 1928. The two Courts below have differed on this question, the lower appellate Court being of opinion that the under-raiyat who has acquired a right of occupancy by custom possesses a protected interest within the meaning of Section 160 (d), Ben. Ten. Act, and is protected from eviction by the landlord, and the question in this appeal is which view is right. The appeal to this Court is by the plaintiff and his appeal is directed against that portion of the decree of the lower appellate Court which has refused her khas possession. The plaintiff has taken a lease from the superior landlord of the raiyat after the landlord has purchased the raiyati holding in execution of a decree for arrears of rent. Section 160 (d) says that 'any right of occupancy' is a protected interest and the words are wide enough to cover the right of occupancy acquired by an under-raiyat by custom. Both the Courts are also agreed on this. The question however is: is this right operative against the landlord or his lessee when the under-raiyati interest is not binding on the landlord, not having been made by a registered instrument and no consent of the landlord having been obtained. Section 183 says
nothing in the Act shall affect any custom, usage or customary right not inconsistent with or not expressly or by necessary implication modified or abolished by its provisions,
and Illus. (2) to that section shows that the usage that an under-raiyat would under certain circumstances acquire a right of occupancy is not necessarily inconsistent with the provisions of the Act. Whore the under-raiyati lease was in contravention of Section 85, Ben. Ten. Act, as it stood before the amendment, such under-raiyati lease was hold not binding on the landlord and it makes no difference whether such under-raiyat acquires a right of occupancy or not. The landlord can ignore such an interest altogether. It has been held in a series of cases that an under-raiyati lease registered in contravention of Section 85, Ben. Ten. Act, is not operative against the superior landlord of the occupancy raiyat: see Peary Mohan v. Badal Chandra  28 Cal. 205 Fakir Chandra v. Banomali  21 I. C. 104 and Jnanendra v. Royman Sheikh : AIR1927Cal513 . The plaintiff having taken lease from the landlord after his purchase at the rent sale has got the same rights as the landlord. In my opinion the raiyat could not by granting a lease in contravention of Section 85 create rights in the sublessee which would be operative against the landlord.
2. The result is that the judgment and decree of the lower appellate Court must be set aside and those of the Munsif restored with costs throughout.