1. This case and Appeal No. 93 were remanded for findings on certain points. They relate to the nature of the landlord's interest at the time of the lease to Kali Charan Dey.
2. It has been found in the other case (Second Appeal No. 2575 of 1917) that the landlord had the right of a permanent tenure holder in one-third of the property, and subsequently acquired a permanent right to two-thirds share. In the present case (Second Appeal No. 1616 of 1917) the landlord had only the interest of a ryot. A sub-lease was granted by the landlord and as he had only a ryot's interest, the interest created in favour of the lessee was that of an under ryot. The lease purported to grant a permanent transferable interest. A sub lease granted by a ryot after the passing of the Bengal Tenancy Act for a term exceeding nine years and registered in contravention of the terms of Section 85, Clause (2) is inadmissible in evidence to prove the tenancy of an under-ryot Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476 : 16 C.L.J. 144 : 17 C.W.N. 59.
3. When, however, the sub-lessee has a subsisting tenancy, it has been held that he can defend his possession, or recover possession on being dispossessed, on the strength of such subsisting tenancy even though the lease cannot be produced to prove the tenancy.
4. In the present case, it was alleged that a notice was served upon the original tenant, Kali Charan, and that a suit based upon that notice resulted in a decree for ejectment under Section 49 of the Bengal Tenancy Act. It was found at some stage of the litigation that that decree was a collusive one. The finding as to the notice having been served, however, is not clear, but the question is not material in the present case because the person in possession of the property is not the original tenant, or his heirs who might have been entitled to a notice to quit, had they been in possession under a subsisting tenancy. The person in possession, the defendant, in execution of a mortgage decree against the original tenant purchased the property, The under ryoti interest is not transferable apart from the lease and the lease being inadmissible in evidence, the defendant cannot, we think, rely upon the invalid lease.
5. We have been asked by the learned Pleader for the appellant to refer the case to a Full Bench, having regard to the difference of judicial opinion upon the question whether the grant of a sub lease in contravention of the provisions of Section 85(2) of the Bengal Tenancy Act is binding as between the lessor and the lessee.
6. In a recent case of Rashed Kazi v. Pachoo Sardar 42 Ind. Cas. 534 Fletcher and Newbould, JJ., in declining to refer the case to a Full Bench, observed as follows: 'We have been asked to refer the case to a Full Bench. But the decision in Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476 : 16 C.L.J. 144 : 17 C.W.N. 59 has been followed on more than one occasion and the learned Judges who decided the subsequent cases did not consider that the point required the decision of a Full Bench. The learned Judges, I suppose, who decided these cases came to the conclusion that this point was a new point that had not been before the Court in the earlier cases and that, if it had been, the Court would have arrived at a different conclusion. However, as the other Benches consisting of other learned Judges saw no difficulty in following the case of Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476 : 16 C.L.J. 144 : 17 C.W.N. 59 in other cases, I do not think we ought to refer the matter to a Full Bench.'
7. We have been referred to the decision in the case of Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 24 C.L.J. 541 : 20 C.W.N. 1340 : 44 C. 771. But that case may be distinguished on two grounds. The first if, that there was a distinct representation on the part of the lessor that he was a tenure holder and had, therefore, a right to grant the ryoti lease; and, secondly, that there was a subsisting tenancy under which the sub lessee was entitled to succeed.
8. The latest case on the point that has been brought to our notice is that of Bamandas Bhattacharyya v. Nilmadhab Saha 35 Ind. Cas. 754 : 24 C.L.J. 541 : 20 C.W.N. 1340 : 44 C. 771 sited above, and the learned Judges in that case declined to refer the case to a Full Bench. We also do not think it necessary, for the reasons stated in the judgment in that case, to refer this case to the Full Bench.
9. In the circumstances, we think the Letters Patent Appeal No. 92 in Second Appeal No. 1616 of 1917 must fail and is dismissed with costs.
In No. 93 of 1919.
10. In this case, as stated above, the landlord had the right of a permanent tenure holder to one-third share of the property at the time when he granted the lease, and it has been found that, subsequent to the grant of the lease, he acquired a permanent right to the rest of the land. The lease was not described as an under-ryoti lease. In these circumstances, the lease was not invalid and is binding upon the landlord.
11. This appeal is allowed and the suit dismissed with costs.