Iswar Krishna Chandimajee Thakur vs Brijbehari Das

James, J.—The appellant is the proprietor of an estate in Purnea District who brought to sale and purchased an istimarari tenure within his own estate which was held at a variable rate of rent istimarari lekin mokarrari nehi. This tenure.holder''s predecessor had in'' 1870 created an under, tenure which purported to be an istimarari mokarrari tenure, a permanent tenure at a fixed rate of rent. The proprietor instituted the suit out of which this appeal arises for enhancement of rent of the under-tenure claiming that his tenure-holder could not, when granting an under-tenure, create a status higher than that which he him-self enjoyed. The Munsif found that the entry of status in the Record of Rights was incorrect and allowed enhancement of rent u/s 7 of the Tenancy Act. His decision was reversed on appeal by the District Judge who accepted the entry in the Record of Rights and held on the authority in Tayefa Khatun Choudhurani and Others Vs. Surendra Kumar Sen Rai and Others, the tenure, holder whose own rent was variable, had the power to create a permanent tenure at a fixed rate.

Attention is drawn on behalf of the appellant to two decisions of this Court (Second Appeal No. Chandra Mohan Manjhi v. Midnapur Zamindari Co. Ltd. Second Appeal No 754 of 1929 and Second Appeal No. of Bhaolanth Marwari v. Midnapur Zamindarin Co. Second Appeal No. 1185 of 1931). Mr. S.M. Mullick on behalf of the respondent argues that when the proprietor purchased in execution of a rent decree the intermediate tenure, he was obliged to annul incumbrances u/s 167 of the Tenancy Act, if he was not to be bound by all the contracts into which the late tenure, holder might have entered regarding his tenure. This was the view taken in Tayefa Khatun Choudhurani and Others Vs. Surendra Kumar Sen Rai and Others, which was expressly not followed by the Division Bench of this Court in Second Appeal No. Bhaolanth Marwari v. Midnapur Zamindarin Co. Second Appeal No. 1185 of 1931 We may say that it appears to us that the purchaser who does not annul incumbrances u/s 167 is bound to recognize such incumbrances as the tenant had power to create; but where the tenant has purported to create in his under tenant a status higher than his own, the landlord is not bound to recognize such a status in the under-tenant.

In fact the under-tenant could not create such a status. The utmost that he could create was a tenure to be held on as favourable terms as his own, and if he entered into a contract with the under-tenure holder that his rent should not be enhanced, he did not thereby confer upon him the status of permanent tenure-holder at a fixed rate so far as the proprietor of the estate was concerned. This was the view taken in the decisions of the Division Benches of this Court, which I have quoted, by which we are bound. It must be held that the under-tenure holder holds a permanent tenure, but at a rent liable to en. hancement. No other point has been argued in this Court. The result is that I would set aside the decree of the District Judge and restore the decree of the Munsif. The plaintiff is entitled to his costs throughout.

Rowland J.

In Finucane and Ameer Ali''s Bengal Tenancy Act at p. 739 there is the following commentary on the legal position. If the holder of a permanent tenure, which is not held at rates fixed in perpetuity, were to grant a lease creating an under-tenure in a permanently settled estate at a rate fixed in perpetuity and if the tenure-holder were ejected, and the tenure were resumed by the proprietor the fixed rate agreed upon with the under-tenure holder would not be binding on the proprietor, for the tenure-holder could not confer a right which he did not himself possess; but the fixed rate would be binding on the tenure-holder himself, his heirs, assigns and successors.

It is not necessary to express any opinion as to the validity of the fixed rate of rent as against a transferee or a stranger auction-purchaser in execution of a decree; and I think we should limit our decision to the case actually before us where the landlord is himself the auction-purchaser, and as pointed out by Khaja Noor J. in Second Appeal No. Chandra Mohan Manjhi v. Midnapur Zamindari Co. Ltd. Second Appeal No 754 of 1929 there has been a merger tantamount to extinction of intermediate tenure. Whatever view might have been taken, had the matter been res integra, I agree that we are bound to follow the decisions of this Court in Second Appeal No. Chandra Mohan Manjhi v. Midnapur Zamindari Co. Ltd. Second Appeal No 754 of 1929 and in that of Second Appeal No. Second Appeal No. Bhaolanth Marwari v. Midnapur Zamindarin Co. Second Appeal No. 1185 of 1931. I concur in the order passed.