1. This appeal arises out of a suit in ejectment. The plaintiff's case is that he is a raiyat and the principal defendants held under him as under-raiyats. In 1907 the plaintiff brought a suit for the ejectment of the defendants after notice under Section 49 (a) of the Bengal Tenancy Act. That suit ended in a compromise.
2. The only question in this appeal is what is the proper interpretation of the decree passed embodying that compromise. Admittedly the plaintiff has served no fresh notice on the defendants before the institution of this suit. He can only eject the defendants if Clause (a) of Section 49 is applicable, that is to say, on the expiration of the term of a lease. In other words the plaintiff's case depends on whether the effect of the solenamah decree was that of a written lease for a term of years. The main provisions of the solenamah are that the defendant No. 1 shall pay at the end of each 9 years a selami of Rs. 44 if he cultivates pan by other people and a selami of Rs. 22 if he or his sons or grandsons, etc., cultivate pan themselves. It further stipulates that if the defendant does not comply with the stipulation, that is, if ha makes default in the payment of selami the plaintiff will be entitled to eject the defendant from the jote and to get khas possession of the lands in suit. In the deed of compromise itself there is no reference to any renewal of lease.
3. On behalf of the plaintiff-appellant reliance is placed on the words 'and on payment of such money shall enjoy the lands. I am unable to accept the contention that the effect of this solenamah decree was that of a written lease for a term within the meaning of Clause (a) of Section 49. It is true, as it has been contended, that the parties might have compromised the former suit legally by arranging that the defendant should have lease as an under-raiyat for a term of 9 years with the option of renewal at the end thereof on payment of selami. But I am unable to hold that that was the actual effect of the compromise into which they entered. That being so since the defendant did not bold under a lease the term of which has expired and as there has been no notice to quit served upon him he is not liable to be ejected.
4. I accordingly dismiss this appeal with costs.
5. [The Letters Patent appeal was against this judgment.]
6. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for ejectment.
7. In 1897, the first defendant took the land from the plaintiff, a raiyat, and thus became an under-raiyat. In 1907, the plaintiff sued to eject the defendant after service of notice under Section 49, Bengal Tenancy Act. On the 13th June, 1908, a decree was made in that suit by consent of parties. On the 20th November, 1919, the plaintiff instituted the present suit for ejectment on the theory that the defendant had, in accordance with the provisions of the consent decree, forfeited the tenancy and was a trespasser in occupation. The trial Court dismissed the suit. That decision has been affirmed' successively by the Subordinate Judge and by Mr. Justice Newbould. We are of opinion that the decree of dismissal must be maintained.
8. In 1907, when the plaintiff sued to eject the defendant after notice under Section 49, Bengal Tenancy Act, the defendant was an under-raiyat. The tenancy was for an unlimited time and there was no written lease. The under-raiyat could, consequently, be ejected only in accordance with Section 49. That section provides that an under-raiyat shall not be liable to be ejected by his landlord except (a) on the expiration of the term of a written lease and (6) when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. This section was interpreted by a Full Bench of this Court in Rajkumari Debi v. Barakatullah Mondal (1912) 39 Cal. 278. The Full Bench ruled that Clauses (a) and (b) must be read together and that when Clause (b) mentions a written lease, reference is made by implication to Clause (a) which speaks of a written lease for a term. In the case before us, there was no written lease for a term at the inception of the tenancy. The question thus arises whether the defendant, at the commencement of this suit, held under a lease for a term. If the answer be in the affirmative, he is liable under Section 89 read with Section 49 (a) to be ejected by his landlord in execution of a decree made in a suit instituted on the expiration of the term of such written lease. The plaintiff urges that by virtue of what happened in the suit of 1907, the defendant holds under a written lease for a term. This contention must be tested by reference to the terms of the compromise which formed the foundation of the consent decree, dated the 13th June, 1908. The compromise, as incorporated in the decree, provides that the defendant ahull pay to the plaintiff for the past period a sum of Rs. 20 as premium in addition to the annual rent of Rs. 12-8 and shall thereafter pay, at the end of each nine years, Rs. 44 as premium if he should cultivate the land by other persons, but only Rs. 22 if he himself or his sons or grandsons should carry on the cultivation by themselves. This did not, in our opinion, transform what was a tenancy for an unlimited time, held without a written lease, into a tenancy for a term held under a written lease. This is not a case, where as in Ali v. Nayan (1912) 15 C.L.J. 122, Abdul Karim v. Abdul Rahaman (1912) 15 C.L.J. 672 and Aminuddin v. Ananda (1918) 28 C.L.J. 607, the lease is for a term of nine years with a covenant) for renewal.
9. We are not unmindful that the compromise provides that if the defendant should default in the payment of premium in accordance with its stipulation, the plaintiff would be entitled to eject him from the land of the tenancy. But this is of no avail.
10. Under Section 89 a tenant can be ejected only in execution of a decree and this must be read with the provisions of Section 178, Sub-section (1), Clause (c), which ordains that nothing of any contract between a landlord and a tenant, made before or after the passing of the Bengal Tenancy Act, shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the statute. It is consequently not open to a landlord and a tenant, whose mutual relation is governed by the provisions of the Bengal Tenancy Act, to contract themselves out of the provisions of Section 49. We have been pressed, however, to hold that the position is different, where, as here, a decree has been made by consent on the basis of a petition of compromise. This contention is clearly untenable. As Sir James Parke, J., observed in Wentworth v. Bullen (1829) 9 B. and C. 840, the contract of the parties is not the less a contract and subject to the incidents of a contract, because there is superadded the command of the Judge. To the same effect is the principle enunciated in Huddersfield Banking Co. v. Lister (1895) 2 Ch. 273, namely, that a consent order is a mere creature of the parties and if greater sanctity were attributed to it than to the original agreement itself, it would be giving to the branch an existence which is independent of the tree; for the consent order is only the order of the Court carrying out the agreement between the parties. This principle is in essence recognised in Section 147-A, Bengal Tenancy Act, which deals with the compromise of suits between landlords and tenants and provides that a decree passed in accordance with any lawful agreement, compromise or satisfaction shall be final so far as it relates to so much of the subject-matter of the suit as is dealt with by such agreement, compromise or satisfaction. In our opinion, an agreement to contract out of the requirements of Section 49, Bengal Tenancy Act, if in reality there was such an agreement in the present case, would not operate to entitle the plaintiff to eject the defendant contrary to the provisions of the Bengal Tenancy Act.
11. The result is that the decree made by Mr. Justice Newbould is affirmed and this appeal is dismissed with costs.