1. This appeal is on behalf &t; defendant 1, who, it is conceded, is the principal contesting party, the other defendants deriving their title from him. The plaintiff brought this suit for recovery of khas possession on declaration of her title as purchaser at a sale in execution of a rent decree. The trial Court decreed the suit, holding that defendant 1 was an under-raiyat, and that his interest, being an incumbrance within the meaning of Section 161, Bengal Tenancy Act, had been annulled by service of notice under Section 167. On appeal by the defendants, the lower appellate Court reversed that judgment. The learned Subordinate Judge was of opinion that defendant 1 had acquired the status of an occupancy raiyat and as such, his interest was not liable to be annulled. A second appeal was preferred to this Court by the plaintiff (S.A. No. 1969 of 1936), and Mukherjea J., held that defendant 1 was an under-raiyat; and not a raiyat as claimed by him. He accordingly remanded the case to the lower appellate Court for decision of the question as to whether defendant 1's interest was an incumbrance, and whether such interest had been annulled. On the re-hearing, the learned Subordinate Judge came to a definite finding that the notice under Section 167 had been duly served. As regards the nature of defendant l's interest, he did not think it necessary to go into that question fully, for he took the view that if it was an incumbrance, it had been annulled in fact, and that if it was not, the defendants could succeed only by showing that it was a protected interest under Section 160, which, he held, they had not been able to do. In the result, he passed a decree for recovery of khas possession in favour of the plaintiff. Hence, the present appeal by the defendants.
2. The material facts of the case were set out fully in the previous judgment of this Court. It appears that under the Maharaja of Cossimbazar as proprietor, there was a non-permanent tenure held by certain persons who may be desoribed as the Sahas at an annual rental of Rs. 73-12-0 and under the Sahas there was an oecupanoy holding held by one Mongal Paik at a rental of Rs. 15 per year. It is admitted that defendant 1 held a korfa or under. raiyati jama under Mongal Paik in respect of the entire lands of the tenancy from before the year 1298 B.S. Whether or not there was a written lease at the inception of the under-raiyati holding, defendant 1 appears to have obtained a potta, Ex. B, from Mongal Paik in the year 1304 B.S. Mongal Paik afterwards transferred his interest to Gouri Prasad Boy, and thereupon in 1308 Rule Section defendant 1 executed a fresh kabuliyat in his favour, Ex. A, which was similar in terms to Ex. B. Subsequently, the Sahas obtained a rent decree against Gouri Prasad, and in execution of it purchased the holding themselves, the sale certificate being Ex. 8 and dated 11th November 1921. It does not appear that upon their auction purchase the Sahas took any steps to annul the under-raiyati jama. The Maharaja afterwards sued the Sahas for arrears of rent of their non-permanent tenure, and in execution of his rent decree, purchased the tenure himself on 7th March 1923. Four years later, namely, on 23rd May 1927, the Maharaja purported to grant a raiyati settlement of the lands to the Sahas, and the Sahas executed a kabuliyat, Ex. 9, in his favour, by which they agreed to pay an enhanced rent at the rate of Rs. 16-4-0 per year. As the Sahas afterwards made default in payment of rent, the Maharaja obtained a rent decree against them and in execution thereof, put up the holding to sale on 8th January 1931. It was at this sale that the holding was purchased by the plaintiff.
3. It is the plaintiff's case that the occupancy holding which the Sahas had purchased at their rent sale of 11th November 1921, continued to subsist after the Maharaja's purchase of their tenure on 7th March 1923, and that the kabuliyat, Ex. 9, which the Sahas gave to the Maharaja on 23rd May 1927, was in respect of the same holding, and not for a new tenancy, the enhancement of rent from Rs. 15 to Rs. 16-4-0 per year being within the limits prescribed in Section 29, Ben. Ten. Act. Defendant l's interest accordingly continued to be that of an under-raiyat under the said holding, and was thus liable to be annulled, and was in fact annulled, by the plaintiff upon her purchase of the holding at the rent sale. Mr. Sen on behalf of the plaintiff-respondent maintained that this was in effect the decision of this Court in the previous appeal, and he referred to the express finding of Mukherjea J., that 'defendant 1 still remained an under-raiyat, and the raiyati holding, whether bereft of the occupancy right or not, still existed.' The only point, said Mr. Sen, on which a remand was directed was whether the under-raiyati interest was an incumbrance and had been annulled in accordance with law. Mr. Bhattaoharyya on behalf of the appellants, however, strenuously argued before me - an argument which his clients had unsuccessfully pressed in the trial Court, that Ex. 9 really created a new raiyati tenancy in favour of the Sahas, and that as defendant 1 had been holding the lands from before as an under-raiyat, it must be taken that the Sahas took subject to this interest of defendant 1, and that the plaintiff's purchase at the Maharaja's rent sale was, therefore, equally subject to such interest. The plaintiff was not accordingly entitled to evict the defendants except under Section 48C, Ben. Ten. Act.
4. The argument seems to me to betray a confusion of ideas, and I find myself wholly unable to accept it. An under-raiyati holding implies the existence of a raiyati interest under which it is held. If, therefore, at the date of Ex. 9, defendant 1 was an under-raiyat, it must follow that there was then already a raiyati interest between him and the Maharaja, and it was not possible in that case for the Maharaja to create a new raiyati holding, as he is supposed to have done. One can understand an argument that after the Maharaja's purchase of the Sahas' tenure, defendant 1 came to hold the lands directly under him, but this would make defendant 1 a raiyat under him, and not an under-raiyat; it would mean that on the Maharaja's purchase, the ocoupancy holding which the Sahas had previously purchased at their rent sale was extinguished, and defendant l's status was in consequence raised to that of a raiyat. This is, however, a position which was definitely negatived by Mukherjea J., on the last occasion. It would really involve a mutual contradiction to say that the raiyati interest of the Sahas ceased to exist, but that defendant 1 still continued to hold as an under-raiyat. The more consistent view would be that the raiyati interest of the Sahas continued to subsist, and that Ex. 9 was only a confirmatory settlement of the same holding.
5. In my judgment, the position was this. When in November 1921, the Sahas purchased the holding of Gouri Prosad, there was no merger of the raiyati interest in the superior interest of the Sahas as they were only non-permanent tenure-holders, and Section 22, Ben. Ten. Act, had, therefore, no application. The consequence was that the Sahas acquired a raiyati holding under themselves as tenure-holders. When later on in March 1923, the Maharaja purchased the tenure of the Sahas, the raiyati holding remained, as being an occupancy holding, it could not be annulled by the Maharaja as an incumbrance, and there is also nothing to show that the tenancy might have come to an end otherwise, such as by surrender or abandonment. It follows that when four years later the Sahas executed the kabuliyat, Ex. 9, in favour of the Maharaja, no new tenancy was created thereby, which might be supposed to have been subject to defendant l's interest, so that the plaintiff as purchaser at the subsequent rent sale must also be taken to have acquired the holding subject to that interest.
6. Mr. Bhattacharya referred in this connexion to certain recitals in Ex. 9 to show that the raiyati holding must have been extinguished on the Maharaja's purchase of the tenure in 1923. It is stated in the kabuliyat that after the purchase the lands were in the Maharaja's khas possession, and that he invited applications for settlement by a general notice. I do not think, however, that these recitals can be accepted as suffiotent to establish the position contended for by Mr. Bhattacharyya. This is in fact negatived by the defendants' own case that the lands were at the time in the actual possession of defendant 1. Mr. Bhattacharyya sought to make out that the Maharaja's khas possession was exercised through defendant 1, but this would imply a direct relationship of landlord and tenant between the Maharaja and defendant 1. Such relationship could however exist only on the basis either that the Maharaja was a tenure-holder and defendant 1 held under him as a raiyat, or that the Maharaja was himself a raiyat and defendant 1 an under-raiyat under him. The first alternative is ruled out not only by the previous judgment of this Court, but by the further consideration that in that case the Maharaja could not make another raiyati settlement of the same lands in favour of the Sahas. The second alternative is equally untenable, for it would mean a raiyat creating a raiyati settlement himself, and also go against the terms of the kabuliyat itself which certainly gave the Maharaja a higher status than that of a raiyat.
7. The first branch of the appellants' argument that the plaintiff's purchase was subject to defendant 1's interest, because the Sahas themselves had acquired their raiyati holding subject to that interest, must therefore fail. This takes us to the main question for which the case had been remanded to the lower appellate Court, namely, whether on the basis that defendant 1 held as an under-raiyat under the Sahas both before and after the execution of the kabuliyat, Ex. 9, the sale to the plaintiff could be said to have been subject to the under-raiyati interest under the provisions of Chap. 14, Bengal Tenancy Act.
8. It seems to me that the learned Subordinate Judge took a correct view in the matter in holding that such a position could be maintained only by showing either that defendant l's interest was an 'incumbrance' within the meaning of Section 161, but that it had not been annulled by the plaintiff under Section 167, or that it was a 'protected interest' as de-fined in Section 160 of the Act. Section 159 in fact makes it clear that on no other basis could defendant 1's interest be held to be binding on the plaintiff. This is a section which purports to enact an exception to the general rule that the tenure or holding itself shall pass at a rent sale, and it makes an exception only in favour of 'protected interest' on the one hand, and 'incumbrances' on the other, provided in the case of the latter, the purchaser takes no steps to annul the same. It follows that all other interests will ipso facto stand determined by such sale. In other words, an interest will subsist, if it is a protected interest: it will also subsist, if it is an incumbrance and is not annulled; but an interest, which is neither a protected interest nor an incumbrance, must yield to the rights of the purchaser.
9. It is hardly necessary to point out, as the definition of the term 'incumbrance' in Section 161, Clause (a) shows, that if an interest is a protected interest, it cannot be an incumbrance, but the converse does not follow that if it is not an incumbrance, it must be a protected interest. An interest is not therefore necessarily saved from a rent sale by merely showing that it is not an incumbrance: it can be saved only where it is not an incumbrance, because it is a protected interest. Now, in the present case, the learned Judge has come to a definite finding that a valid notice under Section 167 had been duly served by the plaintiff on defendant 1. That being so, it is obvious that the defendants gain nothing by showing that defendant 1's interest was an incumbrance, for if it was, the service of that notice was sufficient to annul it. Nor will it avail the defendants merely to show that defendant 1's interest was not an incumbrance: they must further show that it was a protected interest. The learned Judge was thus right in holding that the only material question to consider in this case was whether or not defendant 1's interest came within the definition of a protected interest as contained in Section 160.
10. Section 160 contains eight clauses. It is conceded that the only clauses which might conceivably be relied on by the defendants are Clauses (c), (d) and (g). Neither Clause (d) nor Clause (g) can obviously have any application. Clause (d) speaks of a right of occupancy, but admittedly defendant 1's interest was only that of an under-raiyat. Clause (g) speaks of any right or interest which the landlord at whose instance the tenure or holding is sold, or his predecessor-in-title, has expressly and in writing given the tenant for the time being permission to create. But defendant l's interest was certainly not an interest created by the tenant for the time being, much less with any permission in that behalf granted by the landlord. Mr. Bhattacharyya attempted to bring the case under Clause (c) by reference to the terms of Ex. A, the kabuliyat, which was executed by Gouri Prosad in favour of the Sahas in 1308 B.S. Incidentally, this involves an admission that the holding which was settled by the Maharaja with the Sahas in 1927 was the same holding as was held by Gouri Prosad under this kabuliyat. The clause in the kabuliyat on which reliance is placed is that relating to the residential houses. It is said that the lease was a lease of land whereon dwelling-houses had been erected within the meaning of Clause (c). The difficulty in the appellants' way is that there is nothing to show that the dwelling-houses mentioned in the lease were permanent dwelling-houses. Mr. Sen has argued that dwelling houses in Clause (c) mean permanent dwelling-houses, and has cited a case reported in Makr Ali v. Shyam Charan Das ('98) 3 C.W.N. 212 in support of his contention. That was a case arising under Section 37 of the Bengal Revenue Sale Law. But the clause which fell to be construed there is expressed in almost identical terms as Clause (e), and I see no reason why the same construction should not be applied. The collocation of the words in Clause (o) of Section 160, as in the corresponding Section in the Revenue Sale Law, goes to show that the object is to protect leases on which permanent structures have been erected. The words used are 'dwelling-houses, manufactories or other permanent buildings.' The words 'other permanent buildings' clearly indicate that the structures referred to in the preceding part of the clause must also be permanent in character, otherwise, there would be no point in using the word 'other.' It is not disputed that if dwelling houses in Clause (c) mean permanent dwelling-houses, the kabuliyat here does not answer the requirements of this clause. I see no reason therefore to differ from the learned Judge in his conclusion that defendant 1's interest was not a protected interest. All the grounds urged on behalf of the appellants for resisting the plaintiff's claim to khas possession thus fail. The result is that the appeal is dismissed with costs.