A sub-tenant is not bound by a decree for possession obtained by the lessor against the lessee, if the eviction is based upon a ground which does not by itself annul the sublease.

( 1 ) THIS is an application under Section 115 of the Code o Civil Procedure at the instance of one Deo Karan Agarwalla and it is directed against an order passed by a Munsif of Alipore in respect of a petition under Order 21 Rule 97 of the Code of Civil Procedure by the decree-holders.

( 2 ) BEFORE going into the merits of the case it is necessary to state certain facts. Opposite parties 1 to 19 are the shebaits of a debutter estate known as Bhukailash Raj Estate. Many years ago the predecessors of Satyadhan Ghosal and others are stated to have taken settlement of the suit lands from the shebaits of the debutter estate. Later on a portion o this land was surrendered and the remaining six bighas and thirteen cottahs continued to be possessed by Satyadhan Ghosal and his co-sharers. It is the case of the petitioner that Satya Dhan Ghosal and his co-sharers are settled raiyats as contemplated by the Bengal Tenancy Act in respect of the said plot of land which was settled by them in September 1939 with one Rasananda Jana. Title Suit No. 463 of 1945 was instituted by Satyadhan Ghosal against Rasananda Jana and on the 12th January 1948 a decree was passed therein against Rasananda Jana. In execution of that decree the land was auction-purchased by Deokaran Agarwalla and the petitioner's case is that he took khas possession peacefully through court on the 8th January 1949 and had ever since been in possession thereof. Title Suit No. 261 of 1949 was filed by the shebaits against Satyadhan Ghosal and his co-sharers in their personal capacity. That suit was one for ejectment. In that suit neither Rasananda Jana nor the present petitioner Deo Karan Agarwalla was made a party. Ultimately their suit was decreed ex parte on the 4th May 1949. On the 25th April, 1949 the shebaits opposite parties Nos. 1 to 19 instituted Title Suit No. 18 of 1950 against the present petitioner Deo Karan Agarwalla and Rasananda Jana for a permanent injunction restraining the petitioner from erecting any structure on the disputed land upon the allegation inter alia that the present petitioner was a trespasser and had no title to the land. That suit was contested by the present petitioner upon the ground inter alia that the decree obtained in Title Suit No. 261 of 1949 was a collusive one, that it had the effect of a surrender of the tenancy by Satyadhan Ghosal and his co-sharers, that the present petitioner had been elevated to the position of a direct tenant under the debutter estate and that he had acquired a right of occupancy on the disputed land. This suit namely Title Suit No. 18 of 1950 was decreed by the trial Court in part and it was held by the trial Court inter alia that the present petitioner had become a direct tenant under the debutter estate that the decree obtained by the shebaits on the 4th May 1949 in Title Suit No. 261 of 1949 was collusive and that the status of the present petitioner was that of an occupancy raiyat. Ultimately a mandatory injunction was passed against the present petitioner in that suit. The present opposite parties Nos. 1 to 19 preferred an appeal against the decision of the trial court and there was also a cross-objection by the present petitioner. The appeal was Title Appeal No. 169 of 1952. In the appellate Court the appeal took "a peculiar turn", to use the words of the learned Judge. The learned Advocate; for the shebaits appellants gave out that he did not like to press his prayer for injunction which had been refused by the trial Court if the issue as to status was left open for the purpose of that appeal. In spite of protest by the learned Advocate for the respondents who were Deo Karan Agarwalla and Rasananda Jana the learned Judge left the question of status open and undecided with the following! observations"in this new context it will not be necessary to go into the question of status or to consider the effect of the ejectment decree upon the continuance of the tenancy held by Agarwalla. I will,