1. In my opinion the judgment of the Munsif was correct that the plaintiff had no longer any interest in the land in suit and was not entitled to sue. The facts have been clearly stated in the judgment of the Munsif. The plaintiff was formerly a tenant of the zemindar and in 1917 the zemindar instituted a suit for his ejectment. The suit was compromised and the plaintiff was granted a right of occupancy in the land on his promise to pay enhanced rent. This compromise, however, was not put into effect and the zemindar took possession. The plaintiff came to Court on the allegation that in December, 1923, he was ejected by the defendant a stranger, and, therefore, obtained his cause of action. This allegation has been held by both the subordinate Courts to be false. The plaintiff has not been in possession ever since 1917 when the zemindar took possession. The trial Court rightly pointed out that when the zemindar took possession the plaintiff ought to have sued under Section 79 of the Tenancy Act to oust him and that he lost his right of tenancy when he failed to do so within six months of the ouster.
2. The learned Judge of the lower Appellate Court has not controverted the facts and has not held that the plaintiff was in actual possession in December, 1923. He has not looked behind the plaintiff's statement which was one subsequent to the plaint that the zemindar was the plaintiff's subtenant and paid rent by setting off the amount against rent due to the zemindar from the plaintiff. So far as can be made out from his judgment the Judge of the lower Appellate Court admits that in 1917 the zemindar took possession and ousted the plaintiff. He, however, argued that the plaintiff was not actually kicked out and that no force was used against him and that the provisions of Section 79 do not apply unless a tenant is caught by the neck and pushed out. I do not agree with that view of the law and the judgment of my brother Mukerji, does not support that view. The facts of the case in Bijai Bahadur v. Parmeshwari Ram 78 Ind. Cas. 1026 : A.I.R. 1924 All. 834 were totally different because there some arrangement was arrived at between the zemindar and the tenant I am still of the view expressed by me in Bidiya Misir v. Daryai 79 Ind. Cas. 566 : A.I.R. 1924 All. 678 : L.R. 5 A. 184. Rev that the provisions of Section 79 applied to constructive as well as to an actual or physical ejectment of a tenant from his tenancy. In that view I am supported by a ruling of a Bench of this Court in Badri Kasodhan v. Sarju Misir 22 Ind. Cas. 668 : 36 A. 55 : 12 A.L.J. 29. The other, case quoted by the lower Appellate Court; Chet Ram v. Sita Ram 82 Ind. Cas. 251 : A.I.R. 1924 All. 678 : 22 A.L.J. 713 : L.R. 5 A. 366 Rev would have applied if the lower Court had held that the plaintiff was not really ejected by the zemindar in 1917 but was actually ejected by the defendant in December, 1923, at' the instigation of the zemindar. When the plaintiff was ejected by the zemindar in 1917 his right of tenancy came to an end long before December, 1923, and no right of his remained in the land in suit which would entitle him to object to the defendant's construction.
3. I set aside the decree of the lower Appellate Court, restore the decree of the trial Court, and dismiss the plaintiff's suit with costs of all the Courts.
4. The appeal was heard ex parte.