1. The lower Appellate Court has found, affirming the finding of the first Court, that the defendant-respondent holds a transferable tenure and therefore cannot be ejected under the provision of Section 52, Beng. Act VIII of 1869.
2. The question submitted for our decision is whether a landlord is precluded from ejecting such a tenant, viz., a tenant with a right of occupancy, such right being transferable by sale, and is confined to the course laid down in Section 59 of the Act.
3. In the case of Tirbhobun Sing v. Jhono Lall 18 W.R. 206 it was explained that sale, and not ejectment, was the landlord's proper remedy. In the latter case of Krishtendra Roy Chowdhry v. Aena Bewa I.L.R. 8 Cal. 675 : 10 C.L.R. 399 the very question now raised seems to have been discussed, and the decision was against the right of the landlord to eject. The decision under appeal now is in accordance with the cases I have quoted, and should, in my opinion, be confirmed. I would, therefore, dismiss the appeal.
4. If the question for decision in this case were res Integra, I should hesitate much to adopt the conclusion to which the lower Courts have come. Section 22 of Beng. Act VIII of 1869 says: 'When an arrear of rent remains due from any ryot at the end of the Bengalee year or at the end of the month of Jeyt of the Fasli or Willayutti year, as the case may be, such ryot shall be liable, to be ejected from the land in respect of which the arrear is due: provided that no ryot having a right of occupancy or holding under a pottah, the term of which has not expired, shall be ejected otherwise than in execution of a decree, or order under the provisions of this Act.'
5. It is clear, therefore, that all ryots, whether having a right of occupancy or not, and whether such right of occupancy be saleable by the usage of the country or not, are liable to ejectment if an arrear of rent remains due at the end of the year. This provision is not controlled or modified by any subsequent section. Upon the Act itself, therefore, the soundness of the conclusion to which the lower Courts have come is open to doubt. But as there is no conflict of authority on this point, and as it has been understood that the law has been settled in the way in which the lower Court's decision goes, I concur in dismissing the appeal with costs.