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Judgment
The narrow point to be decided in this second appeal is whether a landlord, after having obtained a decree for rent against a saleable under-tenure, and subsequently having lost his estate, can bring the tenure itself to sale in execution of a decree for arrears. Both the lower Courts have held that the right to sell the tenure itself only exists so long as the relationship of landlord and tenant exists; and it is lost when the relationship fails.
The determination of the question rests, in our opinion, upon the interpretation of the Rent Act, the Bengal Tenancy Act of 1885. Under sec. 65, it is declared that " where the tenant is a permanent tenure-holder, a raiyat holding at fixed rates, or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon," If, therefore, the contention of the Appellant be true, there would he two first charges, for different rents,--one by the previous landlord, who had lost his possession, and the other by the person who succeeded him. Sec. 66 says:--"When an arrear of rent remains due from a tenant not being a permanent tenure-holder, a raiyat holding at fixed rates, or an occupancy raiyat, at the end of the Bengali year where that year prevails, or at the end of the month of Jeyt where the fusli or amli year prevails, the landlord may, whether he has obtained a decree for the recovery of the arrears or not, and whether he is entitled by the terms of any contract to eject the tenant for arrears or not, institute a suit to eject the tenant." Admittedly, this sec. 66 does not apply to a case in which the person seeking to execute the decree is not a landlord at the time of the execution.
It seems to us, looking to the heading of this portion of the Act, that sec. 65 is limited in the same manner as sec. 66, and that the Appellant has no right to sell the tenure. The appeal must, therefore, be dismissed with costs.