JUDGMENT

Banerjee, J. - This is an appeal under Clause 15 of the Letters Patent against a decision of Mr. Justice Hill confirming the judgment of the Courts below, by which the plaintiff's suit; for khas possession of some land has been dismissed. The plaintiff sued for khas possession of the land in dispute, on the allegation that it formed part of the occupancy holding of one Mohesh Chandra Ghose under the plaintiff, that that holding having been sold in execution of a decree for arrears of rent was purchased by the plaintiff, and that the plaintiff was entitled to khas possession of the land as the defendant had no right to the same.

2. The defence so far as it is necessary to consider it now, was that the land was held by the defendant as an under raiyat under Mohesh, and that the defendant had acquired a right of occupancy in the same.

3. Both the First Court, and the learned Subordinate Judge on appeal, held that the suit was liable to dismissal, as the plaintiff even if he was entitled to set aside the undertenancy of the defendant, could not succeed in this suit as he did not proceed in accordance with the provisions of Section 167 of the Bengal Tenancy Act; and Mr. Justice Hill has confirmed their judgments holding that, though by Section 85 of the Bengal Tenancy Act, J the sub-lease granted by Mohesh to the defendant was invalid, and though by Section 22 of the Act, upon the purchase of the occupancy holding by the plaintiff who was the sole landlord, the occupancy holding became merged in the plaintiff's zemindari right, still such merger could not affect the rights of the defendant, and that it was, therefore, necessary for the plaintiff, if he wanted to annul those rights, to proceed in accordance with the procedure prescribed by the Bengal Tenancy Act.

4. It is contended on behalf of the plaintiff appellant that this view is incorrect, and that the effect of Section 85 of the Bengal Tenancy Act is to make the sub-letting, which was otherwise than by a registered instrument and was without the landlord's consent, altogether invalid as against the landlord, and if that was so, there were no rights in the sub-lessee, as such, which could come within the reservation contained in the concluding words of Sub-section 1 of Section 22 of the Act.

5. I am of opinion that this contention is sound. It is true that Sub-section 1 of Section 22 concludes with these words: "Nothing in this sub-section shall prejudicially affect the rights of any third party;" but that can only mean rights such as are valid. Here the right, which, it is contended, was protected by that provision, is expressly declared by Section 85 of the Act to be invalid as against the landlord. Therefore we must hold that there was no right in the sub-lessee as such, which could have subsisted, and which can stand in the way of the landlord's recovering khas possession. The necessity of following the procedure prescribed by Section 167 of the Bengal Tenancy Act for annulling an incumbrance arises only where the incumbrance is a subsisting one, and but for the annulment which that section contemplates by the purchaser at a sale for arrears of rent, would be valid. Here the sub-lease which would otherwise have come within the definition of an incumbrance, was invalid from the beginning as against the landlord; and for the landlord it was not necessary to annul that which was never operative against him. If a third party had purchased the right of occupancy at the sale for arrears of rent, it would have been necessary for such third party to follow the procedure prescribed by Section 167 of the Tenancy Act. I am therefore of opinion that the decision appealed against must be reversed.

6. But then it is contended for the defendant, respondent, that in addition to his rights under the sub-lease, he set up a right of occupancy which he alleged he had acquired, and which an under-raiyat may acquire, having regard to the provisions of Section 183 of the Bengal Tenancy Act a