JUDGMENT Mitter, J. - This is an appeal by the Plaintiffs and arises out of a suit for recovery of possession on declaration of Plaintiffs' title. The case of the Plaintiffs is that the landlords purchased in execution of a decree for arrears of rent in the year 1924 the jote which originally belonged to, their tenant, one Dhanai Mandail. It is said that the Plaintiffs took settlement of the jote from the landlord on the 2nd Falgoon, 1313, B. S. On the same day it is said that Dhanai's son Amir Mia executed a kabuliyat for Rs. 27 in respect of some lands of Dhonai's jote in favour of the predecessor of the Plaintiffs. The case of the Plaintiffs is that the disputed land did not form part of this kabuliat. During the last cadastral survey Plaintiffs' jote was recorded as a tenure and that of Amir Mia as a raiyati with a right of occupancy. The disputed land, the plaint proceeds to state, was found in possession of Fonu and Moharali who are the sons of Ahmed. These two persons were recorded as raiyats with occupancy right under the Plaintiffs with a note in the record-of-rights that the land was liable to be assessed to rent. The Plaintiffs' case is that a suit was brought for assessment of rent and upon compromise the rent was assessed at Rs. 6 a year. That compromise decree was executed and the jote in question which was cadastral survey plot No. 506 was purchased by the Plaintiffs in execution of the said decree. When the Plaintiffs went to take possession, they found that the Defendant was in possession of the disputed land and they claimed to hold it as under-raiyats of Fonu and Moharali on a jama of Rs. 1-12 as. The record-of-rights recorded these two persons, as under-raiyats. The Plaintiffs challenged the correctness of the record in the suit. It is said that the Plaintiffs served a notice under sec. 167 of the Bengal Tenancy Act on the Defendant, and the Defendant has not given up possession and hence the present suit. The ease of the Defendant is that he held the disputed land under Dhonai and his successors from the time of his ancestors. His case further is that he has acquired a right of occupancy by-custom. He denies also Plaintiffs' title. The ease of the Defendant is that he held the disputed land under Dhonai and his successors from the time of his ancestors. His case further is that he has acquired a right of occupancy by-custom. He denies also Plaintiffs' title. Both the Courts have concurrently found that the Plaintiffs have established their title to the disputed land; but have refused to decree the Plaintiffs' suit for khas possession on the ground that the Defendant although an under-raiyat, has acquired a right of occupancy by custom. The only evidence in support of this case is the entry in the record-of-rights. The Munsif stated that the Plaintiffs seek khas possession and they say they had served a notice under sec. 167 of the Bengal Tenancy Act, treating the under-raiyati with a right of occupany as an Incumbrance. But he found that a right of occupancy was not an incumbrance, but a protected interest, regard being had to the provisions of sec. 160, cl. (d) of the Bengal Tenancy Act. In this view the Munsif declared that the Plaintiffs are entitled to get a rent of Rs. 1-12 as per year. Against this an appeal was taken to the District Judge of Jessore who has affirmed the decision of the Munsif. In the second appeal it is contended by Mr. Das who appears for the Appellants that both the Courts below committed an error of law in refusing to grant the Plaintiffs a decree for khas possession without coming to a finding as to whether the under-raiyati was created by Dhonai Mandal with the assent of Dhonai's landlord. In a recent Second Appeal No. 776 of 1929 [Kamini Sundari v. Nepal Mondal since reported in 35 C. W. N. 688 (1931)] decided by me on the 23rd February, 1931, I held that the right of occupancy acquired even by an under-raiyat was a protected interest within the meaning of sec. 160, cl. (d) of the Bengal Tenancy Act. But I also decided that if the lease granted by the raiyat offended against the provisions of sec. 85 of the Bengal Tenancy Act as it stood before its amendment by Act IV of 1928, then the landlord is not bound by the lease granted to the under-raiyat and by such a lease could not acquire a right of occupancy as against the landlord of the raiyait. 85 of the Bengal Tenancy Act as it stood before its amendment by Act IV of 1928, then the landlord is not bound by the lease granted to the under-raiyat and by such a lease could not acquire a right of occupancy as against the landlord of the raiyait. Sec. 85 (1) of the Bengal Tenancy Act as it stood before the amendment of 1928 ran as follows:- " If a raiyat sub-lets otherwise than by a registered instrument the sublease shall not be valid against his landlord unless made with the landlord's consent." In this case it has nowhere been suggested that the sublease granted by Dhonai Mandal in favour of the Defendant's predecessor was one which was granted by a registered instrument. It therefore becomes necessary to determine whether the sublease which was granted by Dhonai was granted with the consent of the superior landlord of Dhonai. If it was granted with the consent of the superior landlord of Dhonai, then the Defendants' possession will be protected and he will have to respect any right of occupancy which the Defendant might have acquired by custom. If on the other hand the sub-lease was not granted with the consent of the superior landlord of Dhonai, then the Defendant could not be held to have acquired a right of occupancy as against the present Plaintiffs. In that case the Plaintiffs' suit claiming khas possession must also be decreed. 2. The result is that the finding of the Lower Appellate Court on the question of Plaintiffs' title is affirmed and the decree dismissing Plaintiffs' claim for khas possession is set aside and the case sent back to that Court in order that it may determine the question as to whether the sub-lease granted by Dhonai was or was not with the landlord's consent and after deciding this the Lower Appellate Court must decide the case in the light of the observations which I have just made. The costs of this appeal will abide the result.