Ewart Greaves, J.
1. This is an appeal by defendant No. 1 againest a decision of the Subordinate Judge, Khulna reversing a decision of the Munsif of the First Court of Bagerhat.
2. The fact are as follows: The plaintiff is a Uduqdar and under him was raiyat named Felu. In execution of a decree obtained. by the plaintiff in a rent suit brought against Felu the plaintiff on the 19th August 1907 purchased the raiyati. He then proceeded to let out the land to defendant No. 3. Defendant No. 3 by a document Ex. B purported, to create an under-riuyoti in defendant No. 1 in March 1908. It is admitted that this document is inadmissible in evidence and that it is not valid as against the landlord. A rent suit was brought by the plaintiff against defendants Nos. 3 and 1 and in execution of the decree which he obtained therein the plaintiff purchased the holding on the 23rd April 1919 and this suit for khas possession was subsequently brought. The First Court held that as no notice under the Bengal Tenancy Act was served upon the defendant No. 1, the interest of defendant No. 1 had not been determined. The Second Court held that defendant No. 3 was the tenant of the plaintiff and that the decree which the First Court had held as a money-decree was a rent decree. The learned Subordinate Judge further held that Ex. B was invalid and that defendant No. 1. could claim no interest and that no notice was necessary before1 he could be ejected. Against this, the defendant No. 1 has preferred the present', appeal and what is argued before us is that although Ex. B is invalid some interest has been created in defendant No. 1 by reason of the grant by defendant ,No. 3 and it is further contended that this interest so created is binding on the landlord and that he cannot eject the defendant No. 1, the appellant without giving him notice under the provisions of the Bengal Tenancy Act and it is further suggested that the landlord, the plaintiff, in fact, recognised the interest of defendant No. 1 by making him a party in the rent suit. Now, the provisions. of Section 85, Sub-section (1) of the Bengal Tenancy Act provide that if a raiyat sublets otherwise than by a registered instrument the sub-lease is not valid against the landlord unless this is made with the landlord's consent. Exhibit B is not binding on the landlord but it is said that the landlord's consent must be implied from the fact, that defendant No. 1 was made a party in the rent suit and some reliance is placed on the fact that the plaintiff in his evidence stated that he knew that defendant No. 3 had sued defendant No. 1 for rent How this last fact has any bearing on the matter it is difficult to see and in so far -as the appellant relies on the fact that defendant No. 1 was made a party in the rent suit I do not see that consent of the landlord can be inferred from this fact. Defendant No. 1 was merely a proforma defendant and I understand that no relief was claimed against him.
3. Under the circumstances, it is impossible to imply, as we are asked to do, any consent by the landlord to any interest which defendant No. 3 created in defendant No. 1, The matter is concluded by the provisions of Section 85, Sub-section (1) of the Bengal Tenancy Act and there was clearly no consent by the landlord to the letting by defendant No. 3 to defendant No. 1.
4. In the circumstances, the appeal fails and is dismissed with costs.
5. I agree.