1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justine Shamsul Huda in a suit for ejectment.
2. The plaintiff claims to be a raiyat, and alleges that the defendant was an under-raiyat for five years, whose term had expired and who had notwithstanding stayed on the land.
3. The suit has been dismissed on the ground that as the plaintiff is a raiyat holding at a fixed rate of rest, the defendant who holds under him mast be a raiyat with a right of occupancy. This view is opposed to the clear provisions of Section 4 of the Bangal Tenancy Act. That section defines the various classes of tenants as (a) tenure holders, including under-tenure holders, (b) raiyats, and (c) under raiyats, i.e., to say, tenants holding, whether immediately or mediately, under raiyats. Raiyats are next classified as raiyats holding at fixed rates, occupancy raiyats and non occupancy raiyats. It is perfectly plain that a tenant who holds under a raiyat is an under raiyat, whether the person under whom he holds is a raiyat holding at a fixed rate of rent or an occupancy raiyat, or a non occupancy raiyat. The defendant in the present one was consequently an under-raiyat, although his immediate landlord, the plaintiff, was not an occupancy raiyat or a non occupancy raiyat but a raiyat holding at a fixed rat6 of rent. Reference has, however, been made to Section 18 of the Bengal Tenancy Act and to the case of Hari Mohan Pal v. Atul Krishna Bose 23 Ind. Cas. 925 : 19 C.W.N. 1127 which shows that a raiyat holding at a fixed rate of rent is competent to create a permanent subordinate tenancy, in the same way as a tenure-holder. But, clearly, that does not affect the present case. The status of the defendant here is that of an under-raiyat, and it is immaterial whether his superior landlord is a raiyat holding at a fixed rate of rent or is an occupancy raiyat, or a non-occupancy raiyat.
4. The appeal must accordingly be allowed, the decree made by Mr. justice Shamsul Huda set aside and that of the Subordinate Judge restored with costs both here and before Mr. justice Shamsul Huda.