The suit, out of which this appeal arises, was brought by the Plaintiff for the ejectment of the Defendant.
The lower Appellate Court has found that the Plaintiff is the raiyat of the land and the Defendant an under-raiyat.
The Defendant has a written lease of the land, executed in 1884, for an indefinite period. The lower Appellate Court has held that the Defendant's lease is void under sec. 85(3) of the Bengal Tenancy Act and that the Plaintiff is entitled to eject him by giving him a notice under sec. 49(b) which notice has been served on him.
The Defendant appeals. We are of opinion that the judgment of the lower Court is wrong. Under sec. 49 of the Bengal Tenancy Act an under-raiyrt can be ejected on the ground of the expiration of the time of a written lease—or by a notice to quit, if he holds otherwise than under a written lease. But if he holds under a written lease for an indefinite time, his raiyat lessor cannot eject him arbitrarily. He can only do so for non-payment of the rent.
Sec. 85(3) has no application to under-raiyats. Sec. 85 is to be found in Ch. IX under the heading of “subletting.” It evidently lays down the circumstances in which sub-leases are and are not valid as against the landlord or the grantor of the sub-lease. This is very clear from the provision of cl. (1) of sec. 85 which enacts that if a raiyat sublets otherwise than by a registered instrument the sub-lease shall not be valid against his (i.e, the raiyats) landlord, unless made with the landlord's consent. Similarly, cl. (3) enacts that when a raiyat has without the consent of his landlord granted a sub-lease by an instrument registered before the commencement of the Act, the sub-lease shall not be valid for more than 9 years from the commencement of the Act. This means “shall not be valid against the raiyat's landlord,” though the Legislature has unfortunately omitted to insert in this clause the words “against his landlord” which occurs in cl. (i).
Cl. (3) cannot be intended to prescribe an additional ground on which under-raiyats can be ejected: otherwise this clause would not have been inserted in sec. 85 but in sec. 49.
This view of the meaning of cl. 3, sec. 85, has already been taken in S.A 1118 of 1899,* decided by Ameer Ali and Pratt, JJ., on the 17th May, 1901.
We decree this appeal with costs. The suit for ejectment is dismissed.
S.C.S
Appeal allowed..