1. This appeal arises out of a suit to recover khas possession of the disputed lands from the defendant, who is found to have been an Under-raiyat to whom a permanent sub-lease had been granted after the passing of the Bengal Tenancy Act.
2. The decisions on the question whether a sub-lease granted in contravention of the provisions of Section 85 of the Bengal Tenancy Act is void not only against the superior landlord but also against the raiyat himself are conflicting. It has been held in several oases that a sub-lease granted by a raiyat for a term exceeding nine years (.after the passing of the Bengal Tenancy Act) and erroneously registered in contravention of the provisions of Section 85, Clause 2, is inadmissible under Section 91 of the Evidence Act to prove the tenancy. We may refer to the cases of Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476: 17 C. W. N. 69: 16 C. L. J. 144, Telam Pramanik v. Adu Shaikh (2) 18 Ind. Cas. 791: 17 C. W. N. 468 and Baisnab Charan De v. Ram Kumar Kor 38 Ind. Cas. 487: 18 C. W. N. cxl (140), 24 C. L. J. 588.
3. On the other hand, in some other oases the view taken is that the question of the invalidity of a sub-lease granted in contravention of Section 85 (1) and (2) can be raised only by the landlord of the raiyat, for instance see Manik Borai v. Bnai Charan 10 Ind. Cas. 469: 13 C. L. J. 649, Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364: 16 C. W. N. 618: 15 C. L. J. 672. The actual decision in these cases, however, may be explained on the ground that the under-raiyat who sought to recover possession bad been in possession under a subsisting tenancy and had been dispossessed or was defending his possession under an existing tenancy. Where an under- raiyat is in possession as a sub-lessee, he! can recover possession (on being dispossessed) or defend his possession on the strength of a subsisting tenancy, which can be established' from possession and other circumstances, although he cannot produce his lease in writing by reason of the invalidity of the written lease. In fact in the case of Manik Borai v. Bani Gharan 10 Ind. Cas. 469: 13 C. L. J. 649, itself the learned Judge held that the suit (in that case) 'ought not to have been dismissed on the ground that the plaintiff had acquired no valid title to' the property, because even though the instrument under which he claims be inoperative under Section 85 of the Bengal Tenancy' Act, he had a subsisting interest when the action was commenced', and in the case of Jarip Khan v. Burfa Bewa 15 Ind. Cas. 476: 17 C. W. N. 69: 16 C. L. J. 144 the case' of Manik Borai v. Bani Charan 10 Ind. Cas. 469: 13 C. L. J. 649, was explained on that ground. The distinction was again relied upon in the recent unreported case of Gonesh Mondol v. Thanda Namasundrani 38 Ind. Cas. 489: 24 C. L. J. 539. See also Fazel Sheikh v. Keramwldi Sheikh 6 C. W. N. 916.
4. In the present case, however, no such consideration arises, because although the under-raiyat was the defendant in possession, it is found that a notice to quit under Section' 49 (b) had been duly served upon him. He cannot, therefore, rely upon any subsisting tenancy. Under the circumstances we think the plaintiff is entitled to khas possession.
5. A question of limitation was sought to be raised in argument in this Court; but the determination of that question depends upon the consideration of questions of fact which1 have not been found, because the appellant did not press the question of limitation in the lower Appellate Court.
6. The appeal is accordingly dismissed with costs.