1. This is an appeal in a suit for rent. The material facts are briefly these: One Raseswari held an 8-annas share in certain taluq. In this taluq there was a certain karsa holding held by one Babu Khan and the defendants held an under-raiyati under Babu Khan. Raseswari obtained a rent-decree for her share of the rent and put the karsa holding to sale and purchased it herself. She then proceeded to let out the karsa right to the present plaintiffs and they have brought this suit for rent against the defendants alleging that they are the raiyats and that the defendants are their under-raiyats. The defendants resisted the claim of the plaintiffs contending that the relationship of landlord and tenant did not exist between them and the plaintiffs. Their case was that they were raiyats and not under-raiyats and that the interest conveyed by Raseswari in the plaintiffs' favour was of the same denomination as their own and that, therefore, the plaintiffs are not entitled to sue them for rent. Both the lower Courts have decided against the defendants and the defendants have now appealed to this Court.
2. Their first contention is that on the purchase of the occupancy holding by Raseswari her raiyati interest was merged in the talqui interest and the defendants were by this raised to the position of raiyats and that the lease granted to the plaintiffs by raseswari was a raiyati lease of the land and of the same denomination as their own and relying on the decision in the case of Kalam Sheikh v. Panchu Mandal 11 W.R. 128 : 2 B.L.R.A.C.J. 252 : 1 Ind. Dec. (N.S.) 816, the contend that the plaintiffs are not entitled to rent from them. 1 think that this contention must succeed. Section 22, Sub-section (2) of the Bengal Tenancy Act, so far as it is applicable to Eastern Bengal and Assam provides that if the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder such person shall have no right to hold the land as a raiyat but shall hold it as a proprietor or permanent tenure-holder, as the case may be, and shall pay to his co-sharer a fair and equitable sum for use and occupation of the land. It seems, therefore, quite clear that since the purchase by Raseswari of the karsa holding the raiyati holding no longer existed but was merged in her superior right. The question then remains what would be the position of the defendants who were under-raiyats under the original raiyats? It seems clear to me that they were automatically raised to the position of raiyats of this holding under the immediate tenure-holders. They cannot be under-raiyats because an under-raiyat has been defined in Section 4 of Sub-section (3) of the Act as a person holding immediately under the raiyat; and Section 5, Sub-clause (3) provides that a person shall not be deemed to be a raiyat, unless he holds land either immediately under proprietor or immediately under a tenure-holder. It, therefore, seems to me that the position of the defendants is that of raiyats. That being so, we have now to consider the effect of the karsa lease granted to the plaintiffs by Raseswari. The plaintiffs contend that the effect of this lease is to grant them a right to receive rent from the defendants and they rely upon two decisions, one in the case of Johar Mull Bhutra v. Bhupendra Nath Basu 67 Ind. Cas. 108 : 34 C.L.J. 79 : 49 C. 495 : (1922) A.I.R.(C.)412 and the other in the case of Ram Anant Singh v. Shankar Singh 30 A. 369 : A.W.N. (1908) 152 : 5 A.L.J. 423. The defendants-appellants have relied on the case of Kalam Sheikh v. Panchu Mandal 11 W.R. 128 : 2 B.L.R.A.C.J. 252 : 1 Ind. Dec. (N.S.) 816. In the case of Kalam Sheikh v. Pachu Mandal 11 W.R. 128 : 2 B.L.R.A.C.J. 252 : 1 Ind. Dec. (N.S.) 816, the facts were very similar to the facts of the present case. In that case there were two leases of the same land, one subsequent to the other, and the learned Judges held that under such circumstances it appeared that the mere fact that the zemindar granted to the plaintiff a lease of the whole of the lands appertaining to the modufut of one Jugo Mohan Sircar could not create the relation of landlord and tenant between the plaintiff and the defendant so as to entitle the plaintiff to institute a suit for a kabuliyat at an enhanced rate. In other words, they did not create the relation of landlord and tenant between the two lessees. This case was referred to in the case of Johar Mull Bhutra v. Bhupendra Nath Basu 67 Ind. Cas. 108 : 34 C.L.J. 79 : 49 C. 495 : (1922) A.I.R.(C.)412 on which the respondents rely, and it was there distinguished and not dissented from. The facts of the case of Johar Mull Bhutra v. Bhupendra Nath Basu 67 Ind. Cas. 108 : 34 C.L.J. 79 : 49 C. 495 : (1922) A.I.R.(C.)412 on which the respondents relied are different because that case was a case of interposing one tenure-holder between two other tenure-holders and the learned Judges held that there was nothing to prevent them being done.
3. The other case on which the respondents rely, namely, the case of Ram Anant Singh v. Shankar Singh 30 A. 369; A.W.N. (1908) 152 : 5 A.L.J. 423 is clearly distinguishable because in that case there was in the second lease an express grant of the right to collect rent from the prior lessee for the remaining portion of the lease. In the case which we are now considering there is no such grant of a right to collect rent and the principles which were the issue of the decision in the case of Kalam Sheikh v. Panchu Mandal 11 W.R. 128 : 2 B.L.R.A.C.J. 252 : 1 Ind. Dec. (N.s.) 816 would apply to the present case.
4. We are, therefore of opinion that it has not been proved that the relationship of landlord and tenant does exist between the plaintiffs and the defendants.
5. The appeal, therefore, succeeds and the plaintiffs' suit is dismissed with costs in all Courts.
Ewart Greaves, J.
6. I agree.