1. This appeal is brought by defendant 1 who is a brother of the plain, tiff. The suit was brought by the plaintiff for confirmation of possession after declaration of title to 13 annas, 12 gandas share in the disputed plot No. 895 in under-raiyati interest. The plot along with other lands appertained formerly to a raiyati holding under a zamindari of which 12 annas share was owned by one Krishna Kishore Roy Choudhury, and 4 annas share was owned by one Sarada Kumar Roy Choudhury. The former the 12 annas zamindari sharer, purchased 2 annas, 8 gandas share of the raiyati in the benami of Josoda Kumar, while the latter, the 4 annas zamindari sharer, acquired by various purchases the remaining 13 annas 12 gandas share of the raiyati interest in the name of his wife Jashoda Kumari. The plaintiff alleged that he executed a kabuliyat in Chaitra 1331 in favour of Jashoda Kumari for an under raiyati in the 13 annas, 12 gandas share held in her name, and that defendant 1 took an under raiyati for the remaining 2 annas, 8 gandas share from the benamidar of Krishna Kisbore Roy Choudhury. In the trial Court the main defences taken were that in fact these so-called under raiyati leases were fictitious, and that the zamindars after their purchases of the raiyati interests possessed them in their zamindari shares, and that defendant 1 obtained a 16 annas raiyati lease in 1327 from the 16 annas zamindars. The trial Court dismissed the plaintiff's suit holding that the under raiyati was fictitious.
2. The lower Appellate Court has held that the under raiyati lease was genuine, that there was no merger under Section 22, Ben. Ten. Act, when the landlords acquired the whole raiyati interest, and that the grant of the 16 annas raiyati bandobast to defendant 1 did not wipe out the under raiyati or affect the possession of the under raiyats, either during the time of the under raiyati or when the under raiyats were holding over. It found however that the under raiyati was taken in the name of the son of the plaintiff as benamidar for the plaintiff and his three brothers including defendant 1. The Court therefore allowed the plaintiff's claim only to the extent of one-fourth share of 13 annas, 12 gandas interest in the land and has given him a declaration accordingly in respect of that share of the under raiyati jointly with defendant 1 and the other two brothers. Defendant 1 appeals, and there is a cross-objection by the plaintiff in respect of the remaining share not allowed by the lower Appellate Court. For the appellant, three main points are urged in this Court, first that there was a merger of the raiyati interest under Section 22, Ben. Ten. Act, with the proprietary interest, and that therefore it was not possible to create an under raiyati interest; secondly that as the under raiyati was created only for a term from 1332 to 1335, and as the term has expired and as the plaintiff has failed to prove the necessary conditions to establish that he was holding over, then even assuming that it existed, it has now terminated; and thirdly that the judgment of the lower Appellate Court was not a proper judgment of reversal in respect of the trial Court's finding that the creation of the under raiyati was fictitious. In the course of the argument it was pointed out that assuming that the appellant established his point that there was a merger, then the question arose as to what interest was created by the benamidar of Saroda Kumar, for the fact of merger would not prevent the four annas proprietor from creating some tenancy interest. The third contention, namely that the judgment of the lower Appellate Court was not a proper judgment of reversal in respect of its finding that the transaction of creation of an under raiyati interest was not fictitious may first be considered. I see no reason to accept this view. In support of its finding on this point the Court has discussed the Circumstances showing that defendant 1 has acquired a 16 annas interest. These circumstances are the fact that the heirs of Krishna Kishore sued defendant 1 for 12 annas share of the rent of the disputed plot in 1332 alleging that the zamindars possessed the land by virtue of merger in accordance with their shares in the zemindari, and not as recorded in the settlement records. Defendant 1 claims to have taken settlement in 1327 from Saroda Kishore and his co-sharer and cited this rent suit in support of his contention. But Saroda Babu though impleaded in the rent suit did not appear; on the other hand, he himself instituted a suit for setting aside the decree in this rent suit and repudiated the claim of the heirs of Krishna Kishore for the 12 annas share of the rent. The plaint of this later suit is Ex. D. The suit was withdrawn, but only after defendant 1 had executed a bayna-patra in favour of Saroda Babu for the sale of the 13 annas, 12 gandas share of the raiyati. The learned Subordinate Judge, in appeal, rightly, in my opinion, came to the findings that these circumstances, while establishing the 16 annas interest of the defendant in the disputed land also show that the creation of the supposed under raiyati in favour of the plaintiff (in the name of his son) was not a fictitious transaction.
3. The principal question for determination is then what was the nature of the interest obtained by the plaintiff, and this turns on the legal question as to whether there was a merger in respect of the old holding. The lower Appellate Court holds that Section 22, Bengal Tenancy Act, does not apply to non-transferable occupancy holdings and that therefore there was no merger in respect of the interests of the raiyat and zamindar in this ease. A number of cases have been cited to me on this point, but it is only necessary to remark that these all relate to cases governed by Sub-section 2 of Section 22 as it stood before amendment in 1928, and that in all of them the entire raiyati interest had been acquired by a part proprietor. In the present case, the entire interest of the raiyat has become united in the 16 annas proprietors, and the terms of sub-sec. 1 are literally fulfilled, when 'person' is read in conjunction with the definition in the General Clauses Act, 1897. When a raiyati is described as being non-transferable this; means that it is non-transferable without the consent of the landlord. Where the whole raiyati interest is transferred to a sole landlord obviously his consent is given to the transfer to himself and Sub-section 1 must apply to such a case. I am unable to see how it can be read to exclude a case where the acquisition of the whole raiyati interest is by several cosharer proprietors even though, as in the present case, they may not have acquired the raiyati interest in the same proportions as their shares in the proprietary interest. I hold therefore that Section 22(1) applies to the present case and that there was a merger of the raiyati and proprietary interests when the purchase of the former by the proprietors was complete. This being the case, it is necessary to consider what interest was acquired by the plaintiff. He could not acquire an under raiyati interest as the grant was made to him by a proprietor holding only four annas of the zamindari interest. He has not made out any case to show that he was a settled1 raiyat; I hold therefore that the plaintiff acquired a non-occupancy right for a term to the extent of four annas in the disputed plot. This term has expired and the plaintiff would be liable to ejectment under Section 44, Bengal Tenancy Act, if a suit to that effect were not barred under the law of special limitation. The lower Appellate Court has found the plaintiff to be in possession of his interest, (jointly with his brothers) though it has found that the interest is that of an under raiyat, and this finding is conclusive as regards the fact of possession. The plaintiff is therefore entitled to a declaration of title to a non-occupancy right to the extent of his interest and to confirmation of possession therein. As to the cross-objection by the plaintiff it is sufficient to say that the settlement was taken in the name of his son, and that the lower Court has found as fact that this settlement was taken in the benami of the four brothers, basing this finding on the evidence adduced, and that no error of law in coming to the finding has been pointed out the cross-objection is therefore dismissed.
4. The lower Appellate Court has held that the raiyati settlement with defendant 1 was inserted between the zamindari interest and the under-raiyati of the plaintiff and his brothers. In the view taken by this Court of the nature of the plaintiff's right the question of the effect of the defendant's grant from the proprietors as regards the four annas non-occupancy interest held by the plaintiff and his brothers is one for determination between the grantor and defendant 1 if disputed. The result is that this appeal is allowed in part and the decree of the lower Appellate Court is modified; the plaintiff's right to joint possession in one-fourth share of the four annas non-occupancy raiyati interest in C.S. dag No. 895 is declared and his possession of the said interest is confirmed. There will be no order as to costs in this Court; the plaintiff will get 7 per cent, of his costs in the lower Courts. Leave to appeal under Clause 15, Letters Patent, is refused.