Mitra and Chitty, JJ.
1. There is no dispute as to the facts of this case. The defendant No. 2 is the superior landlord. The defendant No. 1 holds a plot of land under him. This plot is a portion of a holding held at one time by a raiyat Arman Howladar under the defendant No. 2. In 1889 Arman Howladar granted a lease of it along with other plots of land to the plaintiff. The lease was one from year to year it was not permanent or for a term of years. The defendant No. 2 dispossessed the plaintiff, but the plaintiff is still in possession of other plots, which he holds under Arman. The present suit was instituted by the plaintiff for recovery of possession of this plot, on the ground that he was at least a tenant from year to year under Arman and that the defendants had no right to dispossess him.
2. On these facts the Munsiff held that the plaintiff was entitled to succeed and gave him a decree for possession. The' lower Appellate Court had come to the conclusion that under Section 85 of the Bengal Tenancy Act, the lease granted by Arman to the plaintiff was void. The lower Court has also held that the plaintiff had no title to rely on in a suit for recovery of possession.
3. It has, however, been found that the interest of Arman, as that of a raiyat, has not been put an end to. The plaintiff was paying to Arman the rent, which he was bound to pay under the lease of 1889, and Arman himself was paying rent to the second defendant. We do not see how we can come to the conclusion that the plaintiff had no title to sue for possession of the plot in dispute. He was, under the terms of the lease to him, a tenant from year to year, and, even if the lease was void for certain purposes, it could not be held to be void against his own landlord Arman and, as long as Arman's interest is not put an end to, the defendant No. 2 has no right to eject the plaintiff, who is not his raiyat.
4. The words of Section 85 of the Bengal Tenancy Act appear to us to be clear, at least, in one respect,, namely, that a sublease granted by a raiyat is void only under the circumstances specified therein as against the landlord, but is not necessarily void so far as the raiyat and the under-raiyat themselves are concerned. It does not appear to bar the creation of a right in the under-raiyat to the extent of the right of the raiyat himself. Sub-section (1) expressly says that a sub-lease shall not be valid against the landlord. Sub-section (3) also refers to the right of a landlord if a sub-lease was granted before the passing of the Bengal Tenancy Act. Sub-section (2) was put in between Sub-section (1) and Sub-section (3) evidently for the benefit of the landlord only to prevent the registration of a document, if it creates a tenancy of more than nine years or in perpetuity.
5. The lease in the present case is not one for more than nine years and is not also permanent, and there was therefore no bar to the registration of the lease, even if it be considered that the kabulyat had the same effect as a lease. Thus there is nothing in Section 85 to make the lease to the plaintiff void for all purposes.
6. The lower Appellate Court has relied on certain cases decided by this Court, but none of them appear to us to be applicable to the facts of the present case. Gopal Mondal v. Eshan Chunder Banerjee (1901) I.L.R. 29 Calc. 189 may be used in favour of the contention of the plaintiff and supports our view of the law as laid down in Section 85. It lays down that a sub-lease granted by a raiyat in contravention of the provisions of Section 85 of the Bengal Tenancy Act is void against the landlord only and not against the raiyat or any person claiming through the raiyat. To the same effect is the decision of this Court in Madan Chandra Kapali v. Jaki Karikar (1902) 6 C.W.N. 377. The learned judges say in the last cited case that, when an under-raiyat holds under a written lease for an indefinite time (and in the present case, the lease is also for an indefinite time), the raiyat is not entitled to eject him by giving him a notice under Section 49(6), and that the words 'the sub-lease shall not be valid' in Section 85(3) mean that the sub-lease shall not be valid against the landlord.
7. The decision in Srikant Mondul v. Saroda Kant Mondul (1898) I.L.R. 26 Calc. 46 might at first sight appear to be against the view taken by us, but the question which has been raised before us was not distinctly raised before the learned Judges, who decided it, and it was not necessary for them to decide this question. The same observations would apply to Fazel Sheikh v. Keramuddi (1902) 6 C.W.N. 916, Ramgati Mandul v. Shyama Charan Dutt (1902) 6 C.W.N. 919 and Basaratulla Mundul v. Kasirunnessa Bibi (1906) 11 C.W.N. 190.
8. We are, therefore, of opinion that the decision of the lower Appellate Court is erroneous. We accordingly set it aside and restore the judgment and decree of the Court of first instance with costs in all the Courts.