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3. It was objected by the judgment-debtor, his two sons and a co-sharer that the so-called mukarrari interest is a shikmi ghatwali tenure under the rohini ghatwali and that the lands are raiyati jamabandi jote No. 3 standing in the name of Mosaheb Deo, father of the judgment-debtor, and his co-sharers Chandra Deo and Amani Deo, and that accordingly neither can be saleable.

4. The learned Subordinate Judge relying upon the judgment of 1891 pronounced by Norris and Beverley, JJ., in First Appeal No. 245 of 1889 relating to another portion of the original tenure (which has been subdivided) held, so far as is relevant in this appeal, (1) that the tenure was not a shikmi ghatwali, but a mere mukarrari and, therefore, saleable and (2) that "jote No. 3 was the nij-jote of the mukarraridars in whose tenure it is situated, and, therefore, saleable since it is only the interest of a raiyat in his holding that is not transferable".

5. He accordingly rejected the objections and directed the one-sixth share of Beni Deo and his sons in the attached property to be sold.

6. On appeal by the judgment-debtor the learned District Judge pointed out as to the tenure that the judgment of 1891 was not even inter partes and was long anterior to the entry in the Settlement Record of 1904 which shows the tenure as a khorposh shikmi ghatwali mahal with the shikmidar Mosaheb Deo, Chandra Deo and Amani Deo as 'malik'. Ha held that the tenure was shikmi ghatwali and that accordingly it was not saleable. As to the lands recorded in jote No. 3 he held that it followed from his decision on the first point that they also are not saleable. He then went on to hold further in that regard that even if the tenure were transferable, the entry in the Record of Rights of the holders of the jote as jamabandi raiyats of the village precludes sale of the jote inasmuch as no right of transfer in raiyati land has been recorded in the Record of Rights for the village. As to the argument on behalf of the decree-holder that jote No. 3 must be the mukarraridar's kamat land he pointed out that in such a case the land would have been excluded from the raiyati jamabandi and entered in the separate categories outside that jamabandi reserved for miscellaneous lands such as debutter, lakhiraj, etc.

7. As to the tenure the learned Judge stated in his judgment:

It is now the settled law that shikmi ghatwals are subject to the same incidents as their superior ghatwals neither more nor lees.

8. In the early stages of this appeal that view was, as the order-sheet shows, accepted both by the Bench and at the Bar and the hearing was adjourned pending the decision by their Lordships of the Judicial Committee of the salability of the rohini ghatwali. In Ashutosh Deo v. Bansidhar Shroff 109 Ind. Cas. 730 : 9 P.L.T. 549 : A.I.R. 1928 P.C. 177 : 48 C.L.J. 64 : 50 M.L.J. 7 : 32 C.W.N. 880 : 7 Pat. 744 : 28 L.W. 798 : 55 I.A. 249 (P.C) their Lordships have very recently decided that the rohini ghatwali cannot be sold in execution of a decree. As long ago as 1882 it was held in Bally Dobey v. Ganei Deo 9 C. 388 that a shikmi ghatwali tenure held under the superior ghatwal is not liable to be sold in execution, nor are its proceeds liable to attachment for satisfaction of the debt due from its holder. In that case, as appears from the judgment of 1891 already referred to and the judgment of the District Judge Mr. W.B. Oldham in Bally Dobey v. Ganei Deo 9 C. 388 which is on the record of the lower Appellate Court, it was sought to enforce the sale of a shikmi ghatwali in the hands of a ghatwal on a mortgage security executed by his deceased father when incumbent in the office of ghatwal. The learned Judges pointed out that an inferior tenure cannot have larger incidents attached to it than the superior. That view has been accepted without question ever since. It follows that the tenure of the respondent is not saleable if it is a shikmi ghatwali under the ghatwal of rohini. It makes no difference that the subinfeudation was also khorposh.

9. Mr. S.S. Bose relying upon the judgment of 1891 then contends that the tenure is not a shikmi ghatwali but simply a khorposh mukarrari grant. But in that case the learned Judges only declined to apply the decision in Bally Dobey v. Ganei Deo 9 C. 388 because they held that the plaintiff-appellant in the case before them had failed to show in the face of the assertion of a mukarrari tenure in the mortgage bond which was the basis of that litigation, that her tenancy was in fact shikmi ghatwali. Here in view of the Record of Rights there can be no doubt that the tenure proposed to be sold, is shikmi ghatwali. It is, therefore, as has been rightly held by the lower Appellate Court, not saleable in execution of a decree,