W. Comer Petheram, C.J.
1. I think that the case of Mohima Chunder Shaha v. Hazari Pramani I.L.R. 17 Cal. 45 was rightly decided, and that the defendants are ryots holding the land under the plaintiffs, the zemindars, and that they can only be ejected under the provisions of the Bengal Tenancy Act.
2. The possession of the land in question for the purpose of cultivating it was acquired a good many years ago by the defendants from the persons who at that time were in actual possession of the zemindari within which it was situated, and who were then the only persons who could give possession of the lands of the zemindari to cultivators. It is not suggested that the defendants did not then obtain possession as tenants under the bond fide belief of the title of their landlords, but since then it has been ascertained by the judgment of a Court of law that the zemindari did not belong to these persons, but to the plaintiffs, and the question is whether, now that the plaintiffs have established their right to the zemindari, they can treat all cultivators who have been settled on the lands by the persons whom they have ousted from its possession as trespassers, and obtain khas possession of all the ryoti lands from them at any moment without any notice and without any compensation even for the crops on the land.
3. I am of opinion that they cannot. Section 5, Sub-section (2) of the Bengal Tenancy Act enacts that 'ryot' means primarily a person who had acquired a right to hold land for the purpose of cultivating it. The use of the word 'primarily' in this section would seem to indicate that the definition was not intended to be exhaustive; but, however, that may be, I think that a person in the position of these defendants is a ryot within this definition, and that the zemindar can only obtain khas possession of the land occupied by him under the provisions of Section 44, the ryot having non-occupancy rights. The possession and interest in the land which the defendants acquired from the persons in possession of the zemindari was a right to hold it for the purpose of cultivating it as against all the world except the true owners of the zemindari, and against them unless they proved a title to the zemindari paramount to that of the plaintiffs' landlords.
4. This was, I think, a right to hold the land for the purpose of cultivating it within the meaning of Section 5, Clause 2. It may have been partial, but if it was a right at all, it is within the definition in the section : provided, of course, it was a right bond fide acquired by them from one whom they bond fide believed to have the right to let them into possession of the land. In my opinion the defendants are ryots, and the only right of the person who has obtained possession of the zemindari is to the rent payable for the land, and not to obtain khas possession of the land itself, unless they can do so under the provisions of the Tenancy Act. My answer to the question referred to this Bench is in the affirmative.
5. I am of the same opinion. I retain the opinion expressed by me in Mohima Chunder Shaha v. Hazari Pramanik I.L.R. 17 Cal. 45.