W. Comer Petheram, Kt., C.J. and Rampini, J.
1. It is evident that both under the former and the present law the defendants (being down to 1282 ijaradars of the whole 16 annas proprietary interest) could acquire no Occupancy rights in the land. No doubt if they had acquired an occupancy right previously to 1258, they would not lose it by their becoming ijaradars, hut they themselves assert that they acquired the jotes in 1253 and 1254, and between those years and 1258 there was not sufficient time for the acquisition of occupancy rights by them. Hence, unless they have acquired occupancy rights subsequently to 1283 (i.e., 1876), they cannot have acquired them at all. Now, there can be no doubt that the defendants have cultivated the land as raiyats from 1283 up to now. This is apparent from the evidence in the ease, and the fact that they have of late years held land as tenants is further proved by an arbitration award passed in a case, No. 47 of 1879, in which Gopi Lal Panday was plaintiff and the Maseyks were defendants. The decree based on this award is dated the 18th June 1881, and it decidedly confers on the defendants the status and rights of tenants, for by it is settled that the defendants are in future to pay rent to the plaintiff for the land in dispute in this case; so that even if the defendants were not tenants previous to 1881, they certainly became so on the 18th June 1881. They therefore cannot now be regarded and dealt with as mere trespassers. We think, however, that there is ample evidence to show that they were raiyats of the land from the beginning of the year 1283 B.S. (i.e., 12th April 1876), and from that date rights of occupancy began to accrue to them.
2. The plaintiff, however, contends that the defendants cannot have acquired occupancy rights since then for two reasons: (1) owing to the operation of the provisions of Section 22, Sub-section 3 of the Bengal Tenancy Act, which has checked the growth of occupancy rights from the 1st November 1885; and (2) owing to the fact that the land is khamar land, in which according to Section 116 of the Bengal Tenancy Act, as well as to Section 6 of Bengal Act VIII of 1869, no occupancy rights can accrue. Under the Tenancy Act even non-occupancy rights cannot accrue in such land.
3. The provisions of Section 22(3) of the Tenancy Act are, however, peculiar. They no doubt lay down that a person holding land as an ijaradar shall not acquire a right of occupancy in any land comprised in his ijara. But they do not say that he shall thereby lose all his rights as a non-occupancy raiyat or as a tenant. Further, while they say that an ijaradar shall in this way lose his occupancy rights, they do not say that a person merely jointly interested in land as an ijaradar shall thereby lose them. It is to be observed that Sub-sections 1 and 2 of the same section clearly lay down that a person interested as proprietor and permanent tenure-holder, whether jointly or singly, shall lose his occupancy right in land cultivated by him. It can scarcely be by accident, then, that a similar provision with regard to ijaradars has been omitted from Sub-section 3. No case has been brought to our notice in which it has been laid down that under the old law a person jointly interested in land as an ijaradar shall lose his occupancy rights in land cultivated by him. In Our Buksh Roy v. Jeolal Roy I.L.R. 16 Cal. 127 it has been pointed out that the rule of law laid down in Sub-section 2 of the Tenancy Act did not prevail under the old law, so that when Sub-section 2 is clearly an innovation, it must be concluded that the difference between its provisions and those of Sub-section 3 is deliberate and intentional. Hence we must hold that, both under the former and the present law, a person jointly interested in land as ijaradar' does not thereby lose his occupancy rights, and a fortiori his entire rights as a tenant, in land held and cultivated by him as a raiyat.
4. [The judgment then proceeded to deal with the question as to whether upon the evidence the disputed land was khamar land, and, after holding that it was not, concluded as follows:]
5. In these circumstances we cannot but hold that the plaintiff has failed to discharge that burden, and consequently there would seem to be nothing to prevent the accrual of occupancy and non-occupancy rights in the disputed 602 bighas. As to whether the defendants are occupancy or merely non-occupancy raiyats, it is unnecessary for us to decide. It is sufficient for the purposes of this case if we find the defendants to be raiyats or tenants of the land in dispute. As we find them to be such, it is clear that they cannot be ejected in the present suit as framed, for they cannot be ejected except on the grounds specified in the Tenancy Act, and which are not alleged to exist. We accordingly decree this appeal and dismiss the plaintiff's suit with costs.