1. These two appeals arise out of two suits for rent. In the first Court the learned Judge held that the plaintiffs were kayami mourasi raiyats and the defendant was an under-raiyat and, therefore, they were governed by the provisions of Section 48, Bengal Tenancy Act, which provides that
the landlord of an under-raiyat holding at a money rent shall not be entitled to recover rent exceeJiag the rent which he himself pays by more than the following percentage of the same : (a) when the rent payable by the under-raiyat is payable under a registered lease or agreement - 50 per cent; and (b) in any other case - 25 per cent.
2. He granted to the plaintiffs a proportionate decree in the suits. On appeal to the District Court the learned Judge held that the plaintiffs were tenure-holders and the defendant was a raiyat and hence he held that the provisions of Section 48 did not apply to the present oases. Farther, he held that, even if the plaintiffs were raiyats and the defendant an under-raiyat, still, as the plaintiffs were kayami mourasi raiyats, that is to say, raiyats holding at a fixed rate of rent, they were not governed by the provisions of Section 48, Bengal Tenancy Act. On those findings he decreed the appeals and allowed the plaintiffs' claim in full. The defendant has appealed to this Court. The first argument which was addressed to us is that the question of status of the plaintiffs and the defendant is res judicata and, therefore, the learned Judge erred in holding that the defendant was estopped from saying that he was an under-raiyat and the plaintiffs raiyats. With regard to this question : the learned vakil would seem to argue that the question of the plaintiff and the defendant's status had been decided in some previous suit which had been fought up to the High Court. There is no reference whatever to this previous suit in either of the judgments of the lower Courts and for a good reason, that no such judgment has been filed or exhibited in the case. There is on the record a judgment of this Court, but whether it refers to the lands of the present suits is not apparent. Neither, as far as I can see, does this judgment determine the question of status of the plaintiffs and the defendant. It was a judgment in a Letters Patent appeal by which a judgment of a Judge of this Court, sitting alone, was set aside and a judgment of a Subordinate Judge was restored. What judgment of the Subordinate Judge was restored it is impossible to say as no copy of it appears on the record.
3. The learned vakil for the appellant then contends that the parties went to trial on the footing that the plaintiffs were raiyats and the defendant under-raiyat. As far as can be seen from the plaint this was so. In the plaint the plaintiffs described the defendant as an under-raiyat. It is somewhat difficult to understand, in view of this admission of the plaintiffs that the defendant was an under-raiyat, how the learned Subordinate Judge held that the defendant was estopped from saying that he was an under-raiyat when apparently the plaintiffs from the commencement of the a suit admitted that he was an under-raiyat. It is, however, immaterial for the purpose of the decision of these appeals whether the defendant was a raiyat or an under-raiyat. The plaintiffs admittedly had a raiyat holding at a fixed rent or rate of rent and, therefore, they were persons to whom Section 18, Bengal Tenancy Act, would apply. Section 18 Bengal Tenancy Act, provides that
a raiyat holding at a cent, or rate of rent fixed in perpetutity shall be subject to the same provisions with respect to the transfer of, and succession to, his holding as the holder of a permanent tenure.
4. Now, it has been held by this Court in the case of Hari Mohan Lal v. Atul Krishna Bose  19 C.W.N. 1127, that the word 'transfer' includes 'lease' and that a raiyat at a fixed rate of rent can grant leases in the same way as a permanent tenur-holder, in other words, Section 85, Bengal Tenancy Act, is controlled by Section 18. In the present case, the question is whether Section 48 controls Section 18 or Section 18 controls Section 48. There is no direct authority on this point. I am, however, of opinion by analogy with the finding of this Court that Section 18 controls Section 85 that Section 18 also controls Section 48. Section 85 imposes certain restrictions on sub-letting by raiyats. In the decision to which I have referred and which has been followed by this Court in the case of Amar chand Roy v. Prasanna Dasi A.I.R. 1921 Cal. 603, it was held that the restriction imposed by Section 88 on sub-letting by a raiyat did not apply to sub-letting by a raiyat at a fixed rate of rent it being governed by Section 18, Bengal Tenancy Act. By analogy it seems to me that the restriction imposed by Section 48 on the amount of rent that a raiyat can recover from an under-raiyat has no application in the case of a raiyat at a fixed rate of rent, the section being governed by Section 18. In other words, Section 18 controls Section 48 as it does Section 85.
5. The result is that these two appeals must be dismissed with costs.
6. I am not prepared to agree with the view of law that the word 'transfer' in Section 18, Bengal Tenancy Act, include 'lease' nor that raiyats holding at a fixed rent or rate of rent can create tenancies under themselves which would not be under-raiyati tenancies and, which would not be controlled by the provisions of the Tenancy Act relating to under-raiyat tenancies. In this case, however, it would not be necessary to enter into these matters because although in the plaint the plaintiffs have described the defendants as under-raiyats it appears from the course of conduct between the parties that it was agreed between them and the parties did behave towards one another as if the relationship between them was that of a tenure-holder and a raiyat. The defendants were allowed to purchase the tenancy they now hold on the footing of its being a raiyati holding and to execute a kabuliyat in which it was expressly stated that they held the land as raiyats. Estoppel arising from such conduct is mutual. It affects both the plaintiffs and the defendants and now they cannot resile from the position.
7. I agree, therefore, that the appeals should be dismissed with costs.