S.K. Chakravarit, J.
1. The only Point that arises for determination in this appeal by the defendants is as to whether the plaintiff could claim a right to be declared as Korfa-Raiyats under the defendants-appellants even after the expiry of the period of lease of their prede-cessor-in-interest, without any direct evidence to show that the landlords had Riven consent to such holding over.
2. Admittedly, the predecessor-in-interest of the plaintiffs was one Annada and he was in possession of the case-land on the basis of a Kabuliyat for a term of 7 years expiring with the last of the term does not necessarily create a tenancy of any kind (Gopal Chandra v. Khater Karikar, 33 Cal WN 1207 = (AIR 1930 Cal 262)) and though the assent of the lessor cannot be inferred merely from his delay in taking steps to evict the lessee (Ratan v. Farshi, (1907) 11 Cal WN 826), but in a case where the tenant retained possession for 11 years after the expiration of the lease, the Court inferred that there was tenancy by holding over (Safar Ali v. Abdul Majid, 31 Cal WN 282 = (AIR 1927 Cal 279)). The very fact that for about 24 years since the expiration of the term of the lease the erstwhile korfa-tenant continued in possession would go to show that the tenant had been holding over with the consent of the landlord. In Ratan's case the suit was brought within one year and 7 months after the expiry of the lease. That was too short a period to lead to a different conclusion. Mr. Mitra has also relied on the decision of this Court in (Parmananda Singh v. Syjou Singh. 24 Cal LJ 30 = (AIR 1917 Cal 219)). That was a case where the tenancy was governed by Act VIII of 1869. The period of the lease expired with the 12th of April 1907 and on the 8th and 15th of October 1910 notices had been served on the defendants who were also tenants, to quit. So the period was not long enough to raise an inference of consent on the part of the landlord. Moreover, in that case Their Lordships had also observed that the position might have been different if the provisions of the Bengal Tenancy Act had governed that case. Therefore, that case does not lay down any proposition that there cannot be any such holding over. Moreover, there is a clear decision of this Court in Gosta Behari v. Panchanon, : AIR1959Cal601 which would go to show that such a suit by the tenant would be admissible. That was also a case where the tenant was in possession on the basis of a Kabuliyat and on the expiry of that Kabuliyat the landlord filed a suit for ejectment but that suit was dismissed on account of bar of special limitation prescribed in Article 1 (3) to Schedule III of the Bengal Tenancy Act. Therefore the landlords filed a suit claiming damages for use and occupation from the expiry of the lease to 1353 B. S. with an alternative claim for rent. This Court held that whatever may be the ground for dismissal of the suit the fact remains that the respondents under-raiyats were continuing to occupy their land without any break or interruption and the appellant landlord was no longer entitled to eject them. Mr. Mitra wants to distinguish that case on the ground that there an intervening suit to eject had been dismissed, but in my view that fact is not very much material. In this case also the plaintiffs acquired a non-ejectable right. A korfa tenant can be ejected under Section 48-C of the Bengal Tenancy Act. Certainly he could be ejected under Clause (c) of Section 48-C, on the ground that the term of his Jease had expired. but there is a proviso to the main Section 48-C, and, under that proviso, an un-der-raiyat shall not be liable to ejectment on the ground that the term of his lease has expired if he has been in possession of his land for a continuous period of 12 years whether before or after, or partly before and partly after the commencement of the Bengal Tenancy Amendment Act 1928 or has a homestead thereon. In this particular case, it is already in evidence that Annada and after him his reirs have been in continuous possession of land since 1332 B. S. Therefore, under this proviso to Sec. 48-C they have acquired a non-ejectable right in the case-lands and even if the doctrine under Section 116 of the Transfer of Property Act is applied, there is also evidence to show that it must have been assented to by the landlords. Otherwise it seems impossible to accept the proposition that the landlords would allow the erstwhile right to continue in possession for about 25 years after the expiry of the lease. The tenants had been holding over to the knowledge of the landlord continuously. openly, by asserting title as korfa tenants for more than 12 years, and under the doctrine of adverse possession have also acquired a non-ejectable right, (vide Saroj's case, (1941) 45 Cal WN 126, and the cases reported in 22 Cal LJ pp. 119-54) = (AIR 1915 Cal 625 and AIR 1915 Cal 787).
3. Mr. Mitra contends that at the most it may be stated that the landlord's suit would be barred but the tenant cannot file a suit for a declaration of his tenancy right. I do not think that this proposition is a sound one. What actually happens in such a case is that the tenant acquires an indefeasible title to the land by holding it over for a period of 12 years continuously and whether he is a defendant or a plaintiff is not a relevant factor at all.
4. The result, therefore, is that this appeal fails and is dismissed,
5. There will be no order as to costs in this Court.