1. This is an appeal by the defendants. The plaintiffs, who are the superior landlords, are admittedly tenure-holders. Under them was one Biswa Nath Das, who had a holding of 18 cattas. The defendants were under-raiyats under Biswa Nath Das. They claimed title by what purported to be a permanent lease given to them in 1883. After, Biswa Nath's death a suit for arrears of rent was brought against his daughters by the plaintiffs, who got a rent-decree and, in execution of that decree purchased the holding. This was on the 27th July 1907. The plaintiffs alleged that when they went to take possession they were resisted. They subsequently served a notice under Section 49 of the Bengal Tenancy Act on the defendants and in due course brought a suit for ejectment against them. Both the Courts below decreed the plaintiffs' suit. When the matter went on appeal to the learned District Judge, he found that while the defendants had at one time set up a plea that their immediate landlords were tenure-holders, and at another time stated that they were raiyats at fixed rates, in fact Biswa Nath Das was an occupancy raiyat and that consequently the defendants were under raiyats and in that view of the facts, a permanent lease was invalid under Section 88 of the Bengal Tenancy Act.
2. On appeal the points which have been taken are (1) that Biswa Nath Das was a raiyat at fixed rates, secondly, that on the finding of the learned District Judge that Biswa Nath was an occupancy raiyat and the consequent finding that the defendants are under-raiyats, even if the lease was invalid the defendants would have been entitled to fall back on their possession to establish the then tenancy as under-raiyats. The third is that the facts that the plaintiffs had issued notice under Section 49 of the Bengal Tenancy Act on the defendants and had allowed them to remain in possession for some 4 years, raised them from the status of under-raiyats to that of raiyats, because by the doctrine of 'merger' when the interest of the occupancy raiyats became united with that of the tenure-holders in the same persons, by reason of Section 22 of the Bengal Tenancy Act the status of the plaintiffs being that of tenure-holders, the defendants, who held immediately under them, thereby became raiyats. The fourth argument is that in any case the defendants had a protested interest because they had a Baroj or betel plantation on the land and thereby their interest was a protected interest within the meaning of Section 160, Clause (c), of the Bengal Tenancy Act and that as the landlords did not proceed under Section 167 of the Act, their suit must fail.
3. The first point taken that Biswa Nath was a raiyat at fixed rate was not seriously pressed. The learned Pleader admitted that he could only press his argument on that point on the supposition that the learned Judge had thrown the onus on the wrong side and he was not prepared to argue as a point of law that the learned Judge had erred in throwing the onus as he did. We must, therefore, proceed on the footing that the learned Judge's finding that Biswa Nath was an occupancy raiyat cannot be attacked. That brings me to the second point, namely, that the under-raiyat is entitled to fall back on his possession to prove the validity of his under raiyat tenure. There has been number of cases of this Court dealing with Section 85 to which it is not necessary to refer, because it is quite clear that under Section 85, Clause 1, a sublease by a raiyat, unless by a registered instrument, is not valid against the landlord, unless made with the landlord's consent. Here there is no registered instrument and that explains the reason why the case made in the first Court was that the sub-lease had been made with the landlord's consent. The Munsif found against that allegation and his finding does cot appear to have been attacked before the learned Judge on appeal and remained undisturbed. That being so, I must proceed on the supposition that the case made that the landlord gave his consent to the sub lease has not been made out and, therefore, the sub lease by the clear provisions of Section 85, Clause 1, is invalid against the landlords. It is absolutely immaterial whether the under-raiyat got possession or not. Any question of part performance or of alternative title by possession in the absence of the document does not arise, because as I have stated, the terms of Section 85, Clause 1, are clear. There must be either a registered lease for a term not exceeding nine years or the landlord's consent: here there is neither.
4. Then I come to the next argument that by reason of Section 22, Clause 1, of the Bengal Tenancy Act and by the fact that the landlords issued a notice under Section 49 of the Bengal Tenancy Acts, the under-raiyat has been raised to the status of a raiyat. Any question whether the issue of notice under Section 49 shows that the landlords treated the defendants as their raiyats would be a question of facts it would be a matter of inference to be drawn by the Court from the landlord's conduct. Here I find no trace of it being suggested that subsequent to their purchase the landlords had treated the defendants as their tenants. It cannot be asserted as a matter of law that the mere issue of notice under Section 49 mast be taken as recognition by the landlords of the defendant as their immediate tenant specially when the terms of the notice are looked at, namely, that the landlord was riot bound by the underlets and intended to eject the defendant. As regards Section 22, Clause 1, the argument advanced must also be overruled. An attempt to put forward a similar argument was made in the case of Gangndhar Manual v. Rajendra Nath Ghosh 19 Ind. Cas. 652 : 17 C.W.N. 860, but the argument was negatived.
5. There remains the other argument that in any case the interest of the defendant was protected under Section 160, Clause (c), of the Bengal Tenancy Act which provides that the lease of land whereon plantations have been made is a protected interest within the meaning of that section. Such a protected interest can only be annulled under Section 167 of the Act. As I have already stated, the protection is claimed by reason of there being a Baroj or betel plantation on the land and the appellants relied on the case of Banko Behary Das v. Krishna Chandra Bhowmick 21 Ind. Cas. 419 : 18 C.W.N. 349 : 18 C.L.J. 170 in support of the argument that a Baroj is a plantation within the meaning of the section. In that case the Court decided it to be a question of fact. It is not necessary, in my view, to go into the question whether a Baroj is a plantation within the meaning of the Section or not. I assume for the purposes of argument that it is. It was argued on behalf of the respondents that Section 167 has no application to a case where the superior landlord is himself the purchaser and the learned Pleader referred to the case of Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 19 C.W.N. 1077 : 43 C. 178 : 22 C.L.J. 99; the passage referred to appears on page 1082 Page of 19 C.W.N.--[Ed.]. The Court in that case did not go so far as to say that Section 167 in no case applies where the landlord is the purchaser. What it said was: 'If the landlord himself happens to purchase, it becomes superfluous for him to proceed in the manner provided in Section 167 by service of notice upon the encumbrancer, because as soon as he is brought into direct contract with the sub tenant, he is entitled to take up the position that the sub tenancy as against him is not valid.' Those remarks are sufficient for the purposes of the case before me. As I have already pointed cut under Section 85, Clause 1, the sub-tenancy is not valid against the landlord and as was hold by the learned Judges in that case, it would be unnecessary for the landlord to proceed under Section 167. It is no use referring to the terms of Section 160, Clause (e), and to say, here is the lease of land and there is a plantation on the land, because it is obvious that when the Legislature speaks of a lease of land it means a valid lease of land, and the lease being invalid against the landlord, as I have pointed out, there is nothing in Section 160, Clause (e), which would protect the defendants. This disposes of all the arguments advanced on behalf of the appellants.
6. The appeal is accordingly dismissed with costs.