JUDGMENT Mukherjea, J. - This appeal is on behalf of the substituted heirs of Defendant No. 2 and it arises out of a suit commenced by the Plaintiff for recovery of possession of the lands in suit on establishment of his title by purchase under Regulation VIII of 1819 of a patni taluk to which the lands are said to appertain. The Plaintiff's case was that a patni taluk, known as Chandra Mala Debya and held under the Bhulua Estate, belonged to one Guru Nath Chakrabarty and others. Originally the patnidars possessed the lands of the patni in khas and later on created a howla in favour of the predecessors of Defendants Nos. 1 to 8 in respect of some portion of the taluk. The patni was sold for arrears of rent under Regulation VIII of 1819 on May 18th, 1937, and purchased by one Subodh Kumar Aich in the benami of Rajani Kanta Dey on January 31st, 1939. The Plaintiff purchased the patni from Rajani Kanta Dey and Subodh Kumar Aich was an attesting witness to the kobala. It is not disputed that by this conveyance the Plaintiff stepped into all the rights of a purchaser of the patni under Regulation VIII of 1819. The Plaintiff commenced the present suit for ejectment of the Defendants from the lands in suit on removal of the huts standing thereon on the allegation that the howla interest of the Defendants could not survive the patni sale. It was averred in the plaint that a notice by the auction-purchaser annulling the howla was actually served on the Defendants, but as the latter did not vacate the lands in spite of demand, this suit had to be instituted. The suit was contested by Defendants Nos. 2, 6 and 7. Their contentions in substance were, that the howla right held by them could not be annulled under sec. 11 of the Patni Regulation and in any event they having acquired occupancy rights as resident cultivators of the village enjoyed the protection under sec. 11, cl. (3) of the Patni Regulation. They further pleaded that the suit was not maintainable as it was one for partial annulment only. 2. The Munsif who heard the suit overruled the contentions of the Defendants, and made a decree in favour of the Plaintiff, but the decree was not on the same terms as prayed for by the Plaintiff. (3) of the Patni Regulation. They further pleaded that the suit was not maintainable as it was one for partial annulment only. 2. The Munsif who heard the suit overruled the contentions of the Defendants, and made a decree in favour of the Plaintiff, but the decree was not on the same terms as prayed for by the Plaintiff. The Plaintiff's prayer for khas possession after removal of the huts was rejected, inasmuch as Defendants Nos. 4 to 8 were held entitled to remain in possession of the lands by virtue of their interest as holders of Taluk No. 1921 to which this land appertained in part. The Plaintiff was given a decree for joint possession with Defendants Nos. 4 to 10. This decree was affirmed by the Additional Subordinate Judge of Noakhali and the heirs of Defendant No. 2, who died during the pendency of the appeal in the Lower Appellate Court, have now come up on second appeal to this Court. 3. The appeal was heard originally by Mr. Justice Biswas sitting singly and he referred it to a Division Bench as, in his opinion, there are certain important points of law involved in this appeal. 4. Mr. Sen Gupta appearing on behalf of the Appellants has raised a three-fold contention in support of the appeal. His first contention is that the howla interest of the Defendants in the suit lands is neither an encumbrance within the meaning of that expression in sec. 11, cl. (1) of the Patni Regulation nor is it an under-lease as contemplated by cl. (2) of that section. It is contended, therefore, that the interest is not annullable at all. The second point raised is that the Defendants have acquired occupancy rights in the disputed lands under sec. 182 of the Bengal Tenancy Act and consequently they are not liable to be evicted under sec. 11, cl. (3) of the Patni Regulation read with sec. 195, cl. (e) (ii) of the Bengal Tenancy Act. The last contention put forward is that, in any view of the case, the patni sale did not ipso facto cancel the howla interest of the Defendants but rendered it voidable at the option of the purchaser. 11, cl. (3) of the Patni Regulation read with sec. 195, cl. (e) (ii) of the Bengal Tenancy Act. The last contention put forward is that, in any view of the case, the patni sale did not ipso facto cancel the howla interest of the Defendants but rendered it voidable at the option of the purchaser. It was necessary therefore for the purchaser to express his intention to annul the howla by some sort of overt act and as no such act was done by the Plaintiff, the suit was not maintainable for want of cause of action. We will now take up these three points one by one. 5. So far as the first point is concerned, we would have to advert to sec. 11 of the Patni Regulation which lays down the effect of a patni sale. The first clause provides that when a sale takes place under the Regulation, the tenure is sold free of all incumbrances that may have accrued upon it by any act of the defaulting proprietor. As a corollary to that it is said in the next paragraph that no transfer by sale, gift or otherwise, no mortgage or other limited assignment, shall be permitted to bar the indefeasible right of the zamindar to hold the tenure of his creation answerable, in the state in which he created it, for the rent, which is in fact his reserved property in the tenure. The second clause provides that all leases originating with the holder of the former tenure, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled. The third clause really engrafts an exception upon these two provisions and protects a khudkhast raiyat and all bond fide engagements with him. 6. Now, an incumbrance is not defined in the Patni Regulation and the instances of sale, gift, mortgage, etc., as given in cl. (1), are certainly not exhaustive--vide, Prodyote Kumar Tagore v. Rakhal Chandra Sarkar 14 C. W. N. 487 (1910). 6. Now, an incumbrance is not defined in the Patni Regulation and the instances of sale, gift, mortgage, etc., as given in cl. (1), are certainly not exhaustive--vide, Prodyote Kumar Tagore v. Rakhal Chandra Sarkar 14 C. W. N. 487 (1910). In a general sense an incumbrance includes "any burden on property, any right or interest which is created by the owner in limitation of his own." cording to the Encyclopaedia of American English Law "incumbrance" is "a burden upon land" depreciative of its value, such as a lien, easement or servitude, which, though adverse to the interest of the land owner, does not conflict with his conveyance of the land in fee. The term is used in sec. 161 of the Bengal Tenancy Act in this general sense. An under-lease would certainly be incumbrance within this definition. But as was pointed out by their Lordships of the Judicial Committee in the case of Turner Morrison & Co., Ltd. v. Monomohan Chowdhury L. R. 58 I. A. 440: s. c. 36 C. W. N. 29 (P. C.) (1931), although an under-tenure would be an incumbrance under the Bengal Tenancy Act, it is otherwise under Act XI of 1859. Sec. 37 of that Act, it was said, draws a marked distinction between "incumbrance" and "under-tenures," and whereas incumbrances are wiped out by a sale under the Act, the purchaser only entitled to annul the under-tenure, if he so chooses, subject to the exceptions and provisos to the section. Their Lordships further observed in the course of their judgment that a similar distinction between incumbrances and under-tenures appears in sec. 11 of the Patni Regulation. Sec. 11 of the Patni Regulation, as has been pointed out above, refers to incumbrances generally in the first clause, while it deals separately with under-leases in the second clause. 7. A difficulty, however, is created by the fact that unlike sec. 37 of the Revenue Sale Law, cl. (2) of sec. 11 of the Patni Regulation speaks only of under-leases of a particular type, namely, which are creative of a middle interest between the patnidar and resident cultivators. We can certainly conceive of cases where there were resident cultivators on the land and the pal enjoyed the land in khas and thereafter created a sub-lease under him. Mr. Sen Gupta's contention is that in such circumstances the under-lessee would not come within the purview of cl. We can certainly conceive of cases where there were resident cultivators on the land and the pal enjoyed the land in khas and thereafter created a sub-lease under him. Mr. Sen Gupta's contention is that in such circumstances the under-lessee would not come within the purview of cl. (2) of sec. 11. The contention may be right but from that it does not follow that such an under-tenure is not annullable at the instance of the purchaser at a patni sale. 8. In the first place, if we take the term "encumbrance" as used in cl. (1) of sec. 11, to be exclusive of what is separately described in cl. (2), the howla in the present case may not come within cl. (2), but there is no room for excluding it from the scope of the term "incumbrance" as used in cl. (1). We may point out in this connection that in various other provisions of the Patni Regulation the word "incumbrance" has been used obviously in the general and wider sense as including a sub-lease as well. Vide sec. 3, cl. (2) proviso. But even if we hold that the howla does not come specifically within the term "incumbrance" as used in cl. (1) of sec. 11, we do not think that the howladar enjoys a protected interest, which cannot be annulled by a point sale purchaser. Sec. 3, cl. (2) of the Patni Regulation deals specifically with the patnidar's right of under-letting and it lays down that patni talukdars are entitled to let out the lands in any manner they may deem most conducive to their interest. Upon this a proviso is engrafted which says that no such engagements shall operate to the prejudice of the right of the zamindar to hold the superior tenure answerable for any arrears of his rent, in the state in which he granted it free of all incumbrances resulting from the act of his tenant. The provisions of the various sections of the Patni Regulation make it absolutely clear that the purchaser at the patni sale is to get the property in the same state in which it was at the time of the creation of the patni. Mr. Sen Gupta concedes that the patni sale purchaser can certainly annul an under-tenure by a suit and this is exactly what he is attempting to do in the present case. Mr. Sen Gupta concedes that the patni sale purchaser can certainly annul an under-tenure by a suit and this is exactly what he is attempting to do in the present case. We therefore hold that the first contention of Mr. Sen Gupta must fail. 9. The second point raised by Mr. Sen Gupta does not impress us very much. The lands in suit are not agricultural lands and are used for homestead purposes, pure and simple. In the settlement records the Defendants are recorded to have howla rights in the same. Sec. 182 of the Bengal Tenancy Act could have no possible application to a case like this where the Defendants have got tenure-holders' rights in the land already and it cannot be argued that because they hold agricultural land in a contiguous village they would have occupancy rights in the homestead land which is comprised in their tenure. The second contention of Mr. Sen Gupta therefore also fails. 10. The last contention that is raised in this appeal is as to whether the howla interest stood cancelled by the patni sale itself or it became merely voidable at the instance of the purchaser. It is not disputed that if it is not void but merely voidable, the purchaser has got to avoid it by expressing an intention to that effect. If, as has been said above, the howla interest is regarded as an incumbrance under cl. (1) of sec. 11 of the Patni Regulation, because it does not come specifically under cl. (2), no fresh act on the part of the purchaser is necessary, and the incumbrance stands annulled by the patni sale itself. On the other hand, if it is treated as an under-tenure, we are certainly of opinion that it is for the purchaser to choose as to whether he would extinguish it or not. It was observed by their Lordships of the Judicial Committee in Turner Morrison & Co., Ltd. v. Monomohan Chowdhury L. R. 58 I. A. 440: s. c. 36 C. W. N. 29 (P. C.) (1931) referred to above, that the purchaser could sue for possession of the holdings joining both the talukdar and the talukdar's tenants and the institution of such a suit would be an effective election to annul the taluk. 11. 11. In the present case there are no sub-tenants under the howladar and the suit itself is one for recovery of possession on annulling the howla interest. The Plaintiff alleges in the plaint that the Defendants refused to vacate even after demand and we are of opinion that no further overt act is necessary on the part of the Plaintiff to afford a cause of action for the present suit. The under-tenure exists so long as it is not annulled and if the suit itself is to be regarded as an act on the part of the purchaser to annul the under-tenure, obviously the Plaintiff purchaser cannot, in the very same suit, recover rents from the sub-tenants under the under-tenure-holder. There could be no claim for rents before the under-tenancy is annulled and the right to recover rent could only accrue after the institution of the suit which is to be regarded as a step taken by the auction-purchaser to extinguish the rights of the under-tenant. This was exactly the decision in the case of Arunchandra Singha v. Sarajit Sen Gupta I. L. R. 60 Cal. 1223 (1933). In the case before us, however, there is no question of recovering rent from the sub-tenants. The suit is one for annulling the under-tenure and the cause of action is the refusal of the Defendant to quit the land even after demand. There is nothing in law which prevents the Plaintiff from recovering possession of the lands in this suit. The result is that the appeal fails and is dismissed. We make no order as to costs in this Court. Blank, J. I agree.