Rampini and Mookerjee, JJ.
1. The suit out of which this appeal arises was brought to recover possession of certain land. The plaintiff is the transferee of the interests of the former owner of the land, who granted a lease of it to one Bama Sundari Debi, the mother of the defendant No. 1. In a suit in 1877 between (he predecessor of the plaintiff and Bamasundari a solenama was entered into by which the plaintiff in that suit granted a mokarari jama to Bamasundari at a rent of Rs. 21-3 for her lifetime, reserving the right to re-enter after her death. Bamasundari Debi died in 1902; and her daughter and another person are now in occupation. The present plaintiff therefore sues to establish his right of re-entry and to eject the defendants.
2. The lower Courts have found that the defendants occupy the position of occupancy miyats and cannot be ejected, and, furthermore, that it was necessary before ejecting them to give notice to quit.
3. The plaintiff now appeals to this Court; and the learned pleader, who appears on his behalf, calls attention to the terms of the solenama, dated the 5th January 1879.
4. In this solenama the following words occur: 'After my death the immoveable property left by Chandra Sekhar, which the plaintiff has settled with me, the plaintiff will take khas possess on of them all. None of the heirs and representatives, that is to say, I, Nistarmi, my sons and grandsons and so forth, will ever raise any objection or prefer any sort of claim to that. If any such claim be preferred, the same shall be inadmissible.'
5. It is to be noted that this contract was made not only by Bamasundari, the mother of the defendant No. 1, but that the defendant No. 1 herself was a party to it. It therefore appears to us that, seeing that it was made before the passing of the Bengal Tenancy Act, tie contract was a perfectly legal and valid one_ under the provisions of Section 7 of Act VIII of 1869 (B.C.), which was the rent law then in force. Furthermore, there is nothing in Section 178 of the Bengal Tenancy Act which debars a tenant from making such a con tract with her landlord. This contract was made before the passing of the Bengal Tenancy Act. Therefore it does not come within the prohibitory terms of Sub-section (3), Clause (a) of Section 178 of that Act. Nor does it, come within the terms of Clause (a), Sub-section (1), of Section 178, because it does not purport to bar in perpetuity the acquisition of an occupancy right by Bama-sundari. It bars the acquisition of an occupancy right, during the, lifetime of Bama Sundari, but that is not in perpetuity. In these circumstances, under the terms of the solenama it appears to us that Bamasundari during her lifetime was not an occupancy raiyat and that the defendants, who are now in occupation of the land, never having paid rent to the plaintiff and never having been recognized by the plaintiff as tenants of the land, are not in the position of raiyats, but of trespassers. They can there' fore be ejected, as no notice to quit was necessary to be given to them.
6. We must therefore, under these circumstances, decree this appeal and remand the suit to the Court' of first instance to determine the other issues which arise in it.
7. The costs will abide the result.