The central legal point established in the judgment is the interpretation of the provisions of Section 11 of Act 7 of 1868 and the definition of 'tenure' under the Act of 1868 to determine the saleability of the Osat Nimhowla.

JUDGMENT

Rau, J. - This is an appeal by the plaintiffs in a suit brought by them for a declaration that a certain revenue sale held under Bengal Act 7 of 1868 read with Act 11 of 1859 was without jurisdiction and for confirmation of possession. The land in suit is an Osat Nimhowla in a Government Khas Mahal in the Sunderbans. It appears that one Sunu Howladar held a Howla or tenure directly tinder Government. Subsequently, in 1902 he created a Nimhowla or under-tenure by granting settlement of 175 bighas odd out of his lands to the plaintiffs. Thereafter, the plaintiffs sold the Nimhowla to one Ramjiban and took a sub-lease or Osat Nimhowla from him. In 1933, the Government sold the Howla for arrears of rent and purchased it themselves. Then in 1937 they similarly sold and bought the Nimhowla and finally on 23rd June 1938, the Osat Nimhowla was sold for its arrears to the principal defendant in the present suit. It is this last sale that is attacked in the suit and it is attacked on the ground that the interest of the Osat Nimhowladar was not saleable under the aforesaid Acts. The trial Court decreed the suit but the decree was reversed by the lower appellate Court. The only point for decision in this second appeal is whether at the time of the sale in 1938 the Osat Nimhowla was a tenure that could be properly sold under the Acts of 1859 and 1868. Speaking generally, Act 11 of 1859 directs the sale of estates for arrears of revenue and Act 7 of 1868 directs the sale of tenures for arrears in the same manner and subject to the same provisions. The term 'tenure' is defined in the Act of 1868 thus:

The word 'tenure' includes all interests in land, whether rent-paying or lakhiraj (other than estates as above denned), and all fisheries, which, by the terms of the grants creating the same or by the custom of the country, are transferable, whether such .'tenures are resumable or not and whether the right of selling or bringing them to sale for an arrear of rent may or may not have been speoially reserved by stipulation in any instrument.

The provision for sale of tenures is contained in Section 11 of the same Act which runs:

Whenever any revenue payable to Government in respect of any tenure not being an estate shall be in arrear after the latest day of payment fixed in the manner prescribed in Section 3 of Act 11 of 1859, the Collector to whom such revenue is payable may cause the tenure to be sold in the manner and subject to the provisions in and by the said Act 11 of 1859 provided for the sale of estates for the recovery of arrears of revenue.

The appellants contend that the Osat Nimhowla was not a saleable tenure within the meaning of these provisions. The argument is briefly this: To be saleable under the Act a tenure must first be liable to payment of revenue. 'Revenue' is defined in the Act as what is annually payable to the Government by the proprietor and proprietor in the case of a tenure means the tenant by whom his tenure is held directly under the Crown. Therefore a tenure to be saleable must be one held directly under the Crown. Further, it must be transferable for otherwise it would not be a tenure at all within the definition quoted above. Sunu Howladar's Howla was undoubtedly a tenure. But it is contended that when that Howla was sold for arrears of revenue and purchased by the Government both the Nimhowla and the Osat Nimhowla came to an end. These subordinate interests may have been transferable tenures as originally created and vis-a-vis the persons creating them but they were nothing more than incumbrances on Sunu's Howla so far as the Government were concerned, and upon the Howla being sold they were extinguished by Section 12 of the Act, 1868; and even if the Nimhowla is held to have been subsequently revived in some way, nevertheless, when that Nimhowla in its turn was sold for arrears of revenue, the effect was to extinguish the Osat Nimhowla. In support of the contention that the Nimhowla and the Osat Nimhowla w