Ameer Ali and Pratt, JJ.
1. This appeal arises out of a suit brought by the plaintiff for arrears of rent for the years 1299-1302, and the facts upon which he bases his claim are shortly these: On the 20th Kartick 1291, the plaintiff acquired by purchase a raiyati holding bearing the annual rent of Rs. 14-1. On the same date, the plaintiff leased out the holding he had purchased to defendant No. 1 who executed in his favour a kabuliat which is on the record of this suit. Some four or five years after the execution of the kabuliat, the defendant No. 1 sold his under-raiyati holding to defendant No. 2, and the plaintiff states that he has accepted the defendant No. 2 as his tenant, but he sues both the defendants for the rent of the years 1299-1302.
2. The defendants took several objections to the plaintiff's suit and the Munsif framed issues covering those objections. The third issue practically involves the question which has been argued in this appeal, namely, whether the rent payable to the plaintiff by the defendants or either of them is liable to be reduced under Section 48, Clause (a) of the Bengal Tenancy Act. The Munsif found that the defendant No. 1 was not liable, but that defendant No. 2, having been accepted by the plaintiff as his tenant, was liable for the rent of the under-raiyati holding. He also found that the plaintiff was a raiyat and defendant No. 2 an ausut-raiyat, in other words an under-raiyat under the plaintiff, and that the entire raiyati of the plaintiff was covered by the defendants' ausut-raiyati. It was admitted before the Munsif that the rent of the plaintiff's raiyati was only Rs. 14-1. And that officer being of opinion that under Section 48, Clause (a) of the Bengal Tenancy Act, the defendants' rent could not exceed 50 per cent, of the plaintiff's rent, he made a decree in favour of the plaintiff at Rs. 21-1-6 per year.
3. The plaintiff appealed to the Subordinate Judge, and the four points raised before him are thus stated in the judgment of the learned Subordinate Judge: First, whether plaintiff is entitled to get rent for the period claimed at the rate of Rs. 37-1 per year; second, whether the lower Court is wrong in awarding damages instead of the interest claimed; third, whether the defendants can be ejected from the holding in arrears; fourth, whether the lower Court is wrong in not decreeing the suit against both defendants Nos. 1 and 2
4. In this appeal we are only concerned with points one and three. Before the learned Subordinate Judge it was admitted that the plaintiff's was a raiyati holding, and that defendant No. 2 held under him as an under-raiyat. The learned Subordinate Judge states that in express terms, and he was of opinion that Section 48, Clause (a) was retrospective in its effect, and that the plaintiff was not entitled to recover more than 50 per cent, in excess of the rent payable by himself to the zemindar. He also held that Section 66 of the Tenancy Act requires for the purpose of ejectment that the arrears of rent should remain due at the end of the Bengali year, and as in the, present case the plaintiff did not wait till the end of the year 1302 to institute his suit for the arrears of that year, the defendant could not be ejected from his holding for those arrears. He accordingly upheld the decree of the first Court,' giving to the plaintiff what had been found by the Munsif to be properly recoverable by him.
5. In second appeal to this Court two points have been raised by the learned pleader for the plaintiff-appellant. In the first place it is contended that Section 48(a) is not retrospective in its effect, This question came up before this Court in another case--Ram Kumar Jugi v. Jafar Ali Patwari--decided by Banerjee and Stevens, JJ., on the 14th July 1898, (ante, p. 199 note). There the learned Judges held that Section 48, Clause (a) was retrospective and operated as a bar to a raiyat recovering from his under-raiyat rent more than 50 per cent, in excess of the rent payable by him to his own landlord. Suffice it to say that we are entirely in accord with that judgment, and we, therefore, overrule this objection taken by the appellant to the judgment of the Court below.
6. It was next contended that this was a permanent mokurari lease coming under Section 179 of the Bengal Tenancy Act. In our opinion this contention is wholly untenable. In the first place, the plaintiff is not the holder of a permanent tenure. Ho never alleged himself to be such. His suit is founded upon the allegation that he was only a raiyat, and his holding was a raiyati holding. Nor is the defendant the holder of a permanent mokurari lease, for throughout the proceedings he has been mentioned as being only an under-raiyat.
7. It was also argued that under Section 66 of the Tenancy Act, the plaintiff was entitled to eject the defendant, inasmuch as the rent of the previous years had not been paid. We agree with the Subordinate Judge that as the suit was brought before the expiry of the year 1302 in respect of the arrears for that year, the plaintiff is not entitled to eject the defendant from his holding under the provisions of Section 66. On these grounds we think that the careful and well-considered judgment of the Lower Appellate Court should be upheld, and this appeal dismissed with costs.