1. In the suit out of which this appeal has arisen the plaintiffs sued to recover khas possession on declaration of their title to a certain holding. Their case was that the defendants were their under-raiyats and they had served notice on them under Section 49 of the Bengal Tenancy Act. The learned Munsif found that the interest of the plaintiffs was that of occupancy raiyats and the interest of the defendants was that of under raiyats and that they were liable to ejectment on notice. On appeal to the District Judge he first allowed the appeal in the absence of the respondents. A petition of review was allowed and the appeal re-heard and the District Judge has now dismissed the appeal.
2. The point so far as we understand it which is now raised by the learned Vakil for the appellants is that at the time when their present landlords purchased the holding the status of the landlords was that of a raiyat at fixed rate and he would argue that it is immaterial if, for some reason or other, the plaintiffs have surrendered some of their rights as raiyats at fixed rate and are now content to be regarded as occupancy raiyats. The answer to this contention would seen to be that this point was never raised before in the Court of first instance. As far as can be seen, the case has been hitherto argued on the consideration of what is the status of the plaintiffs at the present time. We do not think that it is open to the appellants to raise, for the first time in appeal, an issue which would depend upon a finding of fact. The learned District Judge has found as proved that the plaintiffs are not and cannot claim to be raiyats at fixed rate. This is a finding of face with which we cannot interfere in second appeal.
3. The result is that the appeal must be dismissed with costs.