1. This Rule is directed against an order passed by the Munsif, 1st Court, Khulna, on the 12th November 1925. The petitioner before us obtained a rent decree1 against the recorded tenant in respect of a non-transferable occupancy holding and in execution of that decree the said holding was advertised for sale. The Opposite Party, who claims to have taken an under-raiyati lease in respect of the said holding from the said recorded tenant, applied to deposit the decretal amount in accordance with the provisions of Section 170, Clause (3) of the Bengal Tenancy Act. The learned Munsif allowed the said application of the Opposite Party being of opinion that notwithstanding the provisions of Section 85 of the Bengal Tenancy Act, the Opposite Party being in possession of the holding must be regarded as one having an interest therein which was voidable on the sale of the holding and being further of opinion that on a previous occasion the said Opposite Party had been allowed to make the deposit of a certain amount which formed the decretal amount in a certain rent decree which had been obtained by the petitioner against the recorded tenant and the said amount had been withdrawn by the petitioner.
2. Against this order the petitioner preferred an appeal to the District Judge of Khulna but the learned District Judge held that the appeal was incompetent and in that view of the matter, rejected the same. Now, as regards the withdrawal of the deposit on a previous occasion that has been referred to above, all that need be said is that no facts have been found nor for the matter of that are there any to be found on the record which would go to raise an estoppel as against the present petitioner. As regards the question whether the Opposite Party has an interest in the holding voidable on the sale within the meaning of Section 170, Clause (3) of the Bengal Tenancy Act, the decision of the Full Bench of this Court in the case of Jharu Mandal v. Khetra Mohan Bera A.I.R. 1926 Cal. 934 (F.B.) appears to me to leave no room for any doubt whatsoever on the point. It has been held in that case that the expression 'voidable on the sale' does not mean an interest injuriously affected by the sale but an interest which subsists and which is to be avoided after the sale and in the judgment of Mr. Justice Chatterjea at page 732 of the reports it is said that apart from the authorities on the point the words 'interest voidable on the sale' refer to interests coming within the description of 'incumbrance,' which, unless steps are taken to avoid them, subsist after the sale. Now, Section 161 of the Bengal Tenancy Act, Sub-section (a) defines 'incumbrance' as used in Chap. XIV of the Act and it says that the term 'incumbrance,' used with reference to a tenancy, means any lien, sub-tenancy, casement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in Section 160 of the Act. An under-raiyati interest then is an 'incumbrance', but to be so it must be such an under-raiyati interest as the law recognises as valid.
3. Now, it appears from the terms of the lease under which the Opposite Party claims the under-raiyati interests that the expression 'Putra Poutrathi Krame' has been used. The lease, therefore, to all intents and purposes, was a perpetual lease. That being so, in view of the provision of Sub-Section (2) of Section 85 of the Bengal Tenancy Act, it was a document which should, not have been admitted to registration and consequently by reason of the provisions of Sub-section (1) of that section, the sub-lease was not valid as against the landlord. It has been held in numerous cases in this Court of which mention need be made only of one, namely the case of Asutosh Singha Roy v. Bonomali Sain  19 C.W.N. 412, that an under-raiyati lease registered in contravention of Section 85, Sub-section (2) of the Bengal Tenancy Act is not operative against the superior landlord of the occupancy raiyat. That being so, it cannot be contended that the interest which the Opposite Party acquired in the aforesaid lease was one which it was necessary to avoid on the sale. In my opinion, therefore, the Opposite Party did not acquire such interests as would entitle him to make the deposit that he intended to do. The order passed by the learned Munsif, therefore, in my opinion, is without jurisdiction.
4. The Rule, therefore, is made absolute and the order against which it is directed is set aside. The petitioner is entitled to his costs in this Court which we assess at two gold mohurs.
5. I agree.