JUDGMENT B. K. Mukherjea, J. - This appeal is on behalf of the plaintiff and it arises out of a suit commenced by him for assessment of, fair and equitable rent of the lands in suit with a further claim for damages for use and occupation for a period of two years prior to the institution of the suit. The subject matter of dispute is a plot of land measuring-6 bighas and odd cottas recorded in khatian No. 115 of Mouza Manmathanagar which appertains to a temporarily settled estate in the Sunderban area of which the plaintiff is admittedly the settlement holder. Under the plaintiff the Basers had a tenure recorded in khatian No. 57 of the said mouza. The tenure of the Basers was sold in execution of a rent decree obtained by the plaintiff, and it was purchased by the plaintiff on the 13th December 1937. The plaintiff, when he went to take possession of the lands, found the defendant in occupation of the disputed plot and he purported to hold the same as shebait of certain deities known as Banbibi and Bastu Debi. In the revised settlement records, the land was recorded as niskar belonging to the deities mentioned aforesaid of which defendant Kartick Chandra Baser was the shebait. The plaintiff's case is that the alleged niskar which was created by the Basers was not binding on him as a rent sale purchaser and he brought the suit for assessment of fair and equitable rent in respect of the land in suit. The defendant denied the plaintiff's purchase of the Baser's tenure in execution of the rent decree, and his further case was that the land was rent free and was not liable to be assessed with rent. Both the Courts below bad dismissed the plaintiff's suit and the plaintiff has now come up in second appeal to this Court. 2. The Court of appeal below has taken the view that the niskar sub-tenancy created by the Basers was an incumbrance within the meaning of S. 161, Bengal Tenancy Act. The plaintiff, as the purchaser of the tenure in execution of a rent decree was perfectly entitled to annul the incumbrance by serving a notice on the niskar holder under S. 167, Bengal Tenancy Act. This he did not do. The plaintiff, as the purchaser of the tenure in execution of a rent decree was perfectly entitled to annul the incumbrance by serving a notice on the niskar holder under S. 167, Bengal Tenancy Act. This he did not do. The incumbrance, therefore, subsists, and the plaintiff is bound by it in the same way as the old tenant was. It is not open to him to claim rent in respect of the land with regard to which there was a rent free grant created by the old tenure-holder. Mr. Bose appearing on behalf of the plaintiff appellant has contended before us that the interest which was alleged to be created by Basers in favour of the two deities could not be said to be an incumbrance within the meaning of S. 161, Bengal Tenancy Act, and consequently it was not necessary for his client to annul it and it was quite within his rights to demand rent from the defendant who was holding the land within the ambit of his mehal without paying any rent for the same. 3. The ground put forward by Mr. Bose in support of his contention that the niskar interest was not an incumbrance is that it was beyond the competence of the Basers who were the tenure-holders under the plaintiff to create an interest of this kind. Undoubtedly, in order that it may be an incumbrance in accordance with law, it must be an interest which the tenant is capable of creating, but we cannot hold that the interest of a niskar tenant which the Basers attempted to create was altogether void. A niskar tenancy is also a tenancy, and a sub-tenancy comes within the definition of an incumbrance as given in S. 161, Bengal Tenancy Act. The only thing that is alleged by Mr. Bose is that the Basers themselves being tenure-holders for a limited period, were not competent to make a grant which was to exist in perpetuity. We do not know what the period of the Basers' tenancy was and when and how it did come to an end. The only thing that is alleged by Mr. Bose is that the Basers themselves being tenure-holders for a limited period, were not competent to make a grant which was to exist in perpetuity. We do not know what the period of the Basers' tenancy was and when and how it did come to an end. As the incumbrance was not annulled by the rent sale purchaser, it did subsist and was binding upon the latter in the same way as it would have been binding upon the tenure-holder who created it, but if the tenure-holders' interest itself has come to an end by efflux of time or otherwise, it would be open to the plaintiff to have appropriate remedy allowed to him by law. We need not express any opinion on this point This appeal is dismissed. We make no order as to costs in this Court. Sharpe, J. 4. I agree.