A raiyat intermediary who is not in khas possession cannot enforce his right to possess even against a trespasser after the vesting of his estate.

( 1 ) THIS is an appeal under Clause 15 of the Letters Patent obtained at the instance of the plaintiff in a suit for declaration of title and recovery of possession. Such a suit was decreed concurrently by the two courts below but was dismissed by our learned brother Janah, J. , on a second appeal preferred by the contesting defendants.

( 2 ) THE plaintiff's case shortly was that two brothers, Santosh and Atul, held a rayati holding under the then landlord Sushital Kumar Ghosh who on July 12, 1954 obtained a rent decree against the said two brothers in Rent Suit No. 150 of 1954. That decree was put into execution in Rent Execution Case No. 165 of 1954 and the holding being put to auction sale was purchased by the plaintiff on April 21, 1955. The sale was confirmed on May 21, 1955 and as one Mahadev Ahir put forward a claim of korfa tenancy under the judgment-debtor raiyats, the plaintiff started a proceeding under Section 167 of the Bengal Tenancy Act and on January 28, 1958 annulled the said incumbrance. Since then the plaintiff was in possession of the suit land until March 1956 when the present dofendants forcibly dispossessed him from the suit land appertaining to the said holding purchased by the plaintiff. Hence by filing the suit the plaintiff claims declaration of his title and recovery of possession.

( 3 ) IN the written statement the defendants raised various defences including one to the effect that the suit is not maintainable. They further claimed that the interest of the korfa tenant, Mahadev Ahir, could not be annulled and that they on February 27, 1956, purchased the suit land from Mahadev and had been in possession all along by vitrue of their rights as such a purchaser.

( 4 ) THE two Courts below held that by auction, purchase the plaintiff acquired title to the suit land and being entitled to annul the incumbrance, the korfa tenancy was duly annulled by service of notice under Section 167 of the Bengal Tenancy Act. The said Courts further held that the korfa tenancy not being transferable the defendants acquired no title to the suit land by their alleged purchase. The defendants were found to be trespassers and the suit was accordingly decreed.

( 5 ) ON a second appeal to this Court, it was contended for the first time before our learned brother that on the enforcement of West Bengal Estates Acquisition Act the interest of the superior landlord Sushital Kumar Ghose vested in the State with effect from 1st Baisakh, 1362 B. S. corresponding to April 14, 1955. It was further contended that because of such vesting there ceased to exist the relationship of landlord and the tenant between the decree-holder Sushital Kumar Ghosh and the said two brothers, the judgment-debtors, on the date the raiyati holding was put to auction sale and hence such a sale could not have the effect of a rent sale under the provisions of the Bengal Tenancy Act entitling the purchaser to annul the encumbrance. Further it was pointed out that Section 5b of the West Bengal Estates Acquisition Act rendered such a sale to be void and of no effect. Hence the plaintiff could not have annulled the korfa tenancy or claimed recovery of possession by evicting the defendants who acquired korfa tenancy by purchase. This contention being accepted by our learned brother he held as follows :--"i have already held that the sale which took place on April 21, 1955 was not a rent sale. The plaintiff therefore purchased only the right, title and interest of the judgment-debtors and he had no right to annul the incumbrance under Section 167 of the Bengal Tenancy Act, with the result the korfa tenancy claimed by Mahadev Ahir under the judgment-debtors continued. "in that view, our learned brother allowed the appeal and dismissed the suit. Feeling aggrieved the plaintiff has preferred the present appeal under Clause 15 of the Letters Patent.

( 6 ) HAVING heard the learned Advocates it appears to us that the view taken by our learned brot