1. The plaintiffs brought this suit to eject the defendants on the allegation that the plaintiffs were raiyats at fixed rates of the land in dispute and, that the defendants were either heirs or transferees of the heirs of one Bolaram Das with whom the under raiyat's settlement had been made. According to the plaintiffs, the original settlement of their superior interest was with Bhagirath. Das. Bhagirath Das was succeeded by Kshetra Mohan and the settlement with the predecessor of the defendants was made by Drabamayee, the widow of Kshetra Mohan. They alleged that Drabamayee could not make a Permanent Settlement, and, therefore, on the death of Bolaram with whom the settlement was made the landlords had the right to recover possession. The defendants contended that the interest of the plaintiffs was that of tenure-holders, and that the Permanent Settlement was made with Beni Madhab, the father of Bolaram, that this settlement created a transferable interest and that the defendants, therefore, are not liable to ejectment on the death of Bolaram. It is found that the plaintiffs' interest is that of a raiyat at fixed rates.
2. On behalf of the appellants it is contended that it should have been held that the plaintiffs' interest was that of an occupancy raiyat. But having regard to the pleadings we think, that the learned Subordinate Judge was right in holding that the plaintiffs could not claim a lower status than that set out in the plaint. Taking it that the plaintiffs are raiyats at fixed rates it follows that the defendants are under-raiyats. But it also follows that Section 85 of the Bengal Tenancy Act does not bar the predecessor-in-interest of the plaintiffs from making a Permanent Settlement with the under-raiyats or giving their under-raiyats a transferable, heritable interest in the land. The rights of the plaintiffs, therefore, to eject the defendants depends on the nature of the settlement made with their predecessor. The learned Subordinate Judge has held that, as the plaintiffs failed to prove that settlement was made by Drabamayee with Bolaram 10 or 12 years ago as alleged in the plaint, therefore, the plaintiffs' case must fail. With this decision we are unable to agree. On the admitted facts, that the plaintiffs had superior title to the land, it is for the defendants to prove the existence of a tenancy, which will entitle them to retain possession; see Narsing Narain Singh v. Dharam Thakur (1904) 9 C.W.N. 144. It is not sufficient to find that the plaintiffs' case as regards settlement has not been proved. The plaintiffs' main case is that the defendants are on the land, and that they are trespassers with no rights Ito remain on the land. The defendants admitted the plaintiffs' superior title to the land and it is for them to show that they have a right to remain. The learned Subordinate Judge has come to no finding, whether they, the defendants, have succeeded in establishing any such right or not. It will be necessary therefore to remand the appeal for re-hearing and decision as to the rights of the defendants on the land. If the defendants succeed in proving a tenancy, which will enable them to resist the plaintiffs' suit in ejectment, the order passed by the learned Subordinate Judge will be a proper order. If, however, the defendants are unable to establish a tenancy, which gives them the right to remain on the land, then the appeal should be decreed, and the decree of the Munsiff upheld.
3. We accordingly decree this appeal in these terms the decree of the lower Appellate Court is set aside and the appeal remanded to the Court for re-hearing. The question whether the parties should or should not be allowed to adduce any further evidence is a matter within the discretion of the lower Appellate Court.
4. The costs of this Court will abide the result.