1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. justice Shamsul Huda, in a suit for ejectment.
2. The plaintiffs appellants claim a raiyati interest in the disputed land and seek to recover possession on the allegation that the defendant was an under raiyat whose tenancy had been terminated by a notice to quit. The defendant contends that he himself has a right of occupancy and cannot consequently be evicted.
3. It has been found that the original raiyat in occupation of the land, was one Monsa. His interest in the land was acquired by one Ful Chand. But Ful Chand did not turn out his vendor from the land who continued to cultivate the same. The real point in controversy in this case is, what was the result of this transaction. It has been contended on behalf of the defendant that, not with standing the transfer by Monsa to Ful Chand, Monsa continued to be a raiyat in respect of the land and acquired the status of an occupancy raiyat. This position is sought to be supported by reference to Section 6 of Act VIII of 1869, B.C. which is in force in the district where the disputed land is situated. The argument, on behalf of the respondent, has in substance been that Act VIII of 1869, B.C. as well as Act X of 1859 did not non-template the existence of an under-raiyat, because that expression was coined and used for the first time by the framers of the Bengal Tenancy Act. This contention is manifestly fallacious; for it is well-known, and is recognized in numerous decisions in the reports, that under raiyats existed all over the country before the Bengal Tenancy Act was placed on the Statute Book. It has been seriously argued, however, that these subtenants, under-raiyats, were themselves raiyats, such an argument has been found possible because the term raiyat' was not defined either in Act X of 1859 or in Act VIII of 1869, B.C. In our opinion, there is no foundation for this contention. In the case of Baboo Dhunput Singh v. Baboo Gooman Singh W.R. 1864 Act X Rulings 61 Mr. justice Elphinstone Jackson observed that, as a general rule, raiyats are cultivating tenants but they may not be cultivators at all themselves; they may cultivate their lands by hired labour or by under tenants. To the same effect are two later decision, namely Kalee Kishore Chatterjee v. Ram Churn Shah 9 W.R. 344 and Kalee Churn Singh v. Ameeroodeen 9 W.R. 579. In the former of these cases Mr. justice Elphinstone Jackson pointed out that 'Section 6 of Act X of 1859 distinctly alludes to the circumstance of a raiyat with right of occupancy sub-letting his land and does not declare that such raiyat thereby loses his right, but that the sub-lessee thereby gains no right. It is very common all over the country for raiyats who have rights of occupancy to sublet in the Bazar; but that gives the Zemindar no right to dispossess the raiyat with right of occupancy, as the Zemindar here has done.' We cannot possibly accept the contention of the respondent that an under-tenant who holds under a raiyat is a raiyat and acquires a right of occupancy, with the consequence that if there is a tenant under such a person he also is a raiyat with a right of occupancy. The fallacy of this argument becomes manifest, when on close analysis we find that it leads in the position that in respect of the same plot of land there may be an infinite lories of tenants, each under his superior holder but all of them raiyats and all of them in enjoyment of a right of occupancy. It is sufficient to say that there is no authority to be found in any Statute or in any reported decision in support of this astounding conclusion. The learned Vakil for the respondent contended, however, that there was, at any rate, no decision against his view. That is so, for the obvious reason that during the sixty years which have elapsed since A of X of 1859 was passed, no one has ventured to advance an argument of this description. In our opinion, on the facts found, there can be no room for doubt that the plaintiff is a raiyat and the defendant is an under-tenant. The Tenancy of the defendant was terminable and has been terminated in accordance with law. Consequently, he cannot successfully resist the claim for ejectment.
4. The appeal must be allowed, the decree made by Mr. Justice Shamsul Huda set aside and that of the Special Subordinate Judge restored with costs here and before Mr. Justice Shamsul Huda.