1. This is an appeal under Section 15 of the Letters Patent from a decision of Mr. Justice Bepin Behari Ghose, dated the 11th April 1923.
2. The question which arises for our decision is whether the learned Judge was tight in holding that) a right of oocupancy acquired by an under-raiyat by custom descends to his heirs.
3. The point, so far as I can ascertain, has never been decided.
4. By Section 26 of the Bengal Tenancy Act if a raiyat dies intestate in respect of a right of a oocupancy the right descends like other immoveable property subject to any custom to the contrary and the learned Judge considers that once an under-raiyat proves that he has acquired a right of occupancy he is clothed with all the rights which have been described as the incidents of occupancy right under Chap. V of the Bengal Tenancy Acts in the absence of any custom to the contrary, and he thinks that to hold otherwise would be to give an under-raiyat an occupancy right which would be barren of any results. Chapter V deals with occupancy raiyats and nowhere in the chapter is an under-raiyats mentioned or referred to except in Section 113 (1) where reference is made to an under-raiyat with rights of occupancy and it is not until Section 183 of the Act is reached that there is any reference to the occupancy rights of an under-raiyat acquired by custom or usage, which are expressly saved by that section, and I find it difficult to see on what ground the provisions of Chap. V should regulate or govern these rights. Such rights are acquired by custom or usage, and, in my opinion, before such right can be said to be heritable, it must be proved by evidence in the usual way that by custom or usage heritability is an incident of such right, and I think the case must go back to the Munsif for a decision whether, upon the evidence of the question by the custom or usage prevailing in that part of the country where the land is situated, upon the death of an under-raiyat who has by custom or usage acquired occupancy rights in his holding, such right upon his death descends to his heirs. The Munsif will record his finding and return it to this Court as soon as possible. The parties will be at liberty to adduce fresh evidence if they so desire. Before I leave this appeal I should say that in my opinion the question is one of fact and not of law, and I think that no useful purpose will be served by referring to the numerous oases which were cited before us.
5. The right of occupancy acquired by an under-raiyat is a right acquired by custom or usage and not by statute, and in order to determine whether heritability is an incident of the custom or usage you have to ascertain by evidence the nature and extent of the custom or usage.
6. I have not been able to satisfy myself that, apart from statute, heritabiiity is an invariable incident of occupancy right as was urged before us; it may have been so in the case of khood khast raiyat, who seems by custom to have acquired by long tenancy an hereditary right of occupancy. See Philip's Law of Land Tenures, Bengal, p. 14, and I think from the terms of Section 6 of Act X of 1859, re-enacted by Act VIII of 1869, Section 6, that the right of occupancy thereby conferred on raiyats, who had cultivated for more than 12 years was a heritable right; at least it would seem so from the wording of the section which refers to the holding of the father or other persons from whom a raiyat inherits, although Sir Barnes Peacock in Ajoodia Persad v. Mt Emambande, Begum  7 W.R. 528 doubts whether a right of occupancy was heritable and in other cases it has been held to be merely a personal right. See Narendra Narain Roy Choudhury v. Ishan Chandra Sen  18 B.L.R. 274 and Bibee Suhodra v. Smith  20 W.R. 139.
7. This is an appeal against the order of Mr. Justice B.B. Ghose reversing the order of the learned 1st Subordinate Judge of Faridpur, who had reversed the order of the 1st Munsif of Bhanga. The learned Judge, by his order, dismissed the plaintiff's suit.
8. The Plaintiff has appealed under Clause 15 of the Letters Patent.
9. The facts found are briefly these: the plaintiffs are raiyats, and one Gedu was their under raiyat with a right of occupancy. He died. The plaintiff now seeks to eject his heirs on the ground that the occupancy right of an under-raiyat is not heritable and does not descend to his heirs. The learned Judge has held that such a right is heritable, and hence this appeal. The sole point to be determined in this appeal is:
Is the occupancy right of an under-raiyat heritable?
10. The argument of the plaintiff-appellant is this. Occupancy rights are made heritable by statute by Section 26 of the Bengal Tenancy Act. This section applies only to raiyats and not to under-raiyats and therefore the occupancy right of an under-raiyat is not heritable. The respondent argues that an occupancy right is immovable property and so descends like any other immoveable property; that before 1859 the right of all cultivators whether raiyats or under-raiyats were recognized as heritable end the present Act has made no difference; that the heritability of an under-raiyat is part of the customary law of this country and not a creature of statutes.
11. Now ordinarily the interest of an under raiyat holding on an annual holding is not heritable [see the oases of Mehar Ali v. Kalai Khalasi  27 C.L.J. 519, Arip Mondal v. Ram Ratan Mondal  31 Cal. 757 and Jamini Sundari Dasi v. Rajendra Nath Chakraverty  21 C.W.N. 519], All that the heirs get is the right to remain on the holding until the end of the agricultural year. If he holds under a lease his heirs ate entitled to succeed him in the tenancy and can be ejected without notice at the expiry of the lease [Alejan Bibi v. Raham Ali  20 C.W.N. 756]. Are his heirs in any different position if he held a right of occupancy in the land or in other words, is the occupancy right of the under-raiyat heritable?
12. The respondent has contended strenuously that a right of occupancy is not personal right but is immoveable property and he relies on certain observations in the case of Chandra Benode Kundu v. Ala Bux A.I.R. 1921 Cal. 15 where Mukerjee, J., remarks: 'The right of occupancy it will be observed is, for the purpose of descent, thus placed on the same footing as other immovable properties. This is hardly consistent with the theory that the right of occupancy is merely personal right.' And further on (p. 250) the same learned Judge remarks: 'The occupancy raiyat enjoys under the Bengal Tenancy Act substantial rights in the land and his interest cannot be appropriately described as a merely personal right or personal privilege.
13. Unfortunately the learned Judge does not go on to state how such a right of occupancy can be appropriately described. I think myself that considerable confusion has arisen from the use of the expression 'occupancy holding,' an expression which is constantly found in the Law Report and is used in the decision, which I have just referred to. As far as I can see with great respect to the learned Judges who have used the expression it is inaccurate. In the Bengal Tenancy Act a holding means a parcel of land held by a raiyat and forming the subject of a separate tenancy; so an occupancy holding is an occupancy parcel of land held by a raiyat. I confess, I can attach no meaning to this expression. The expression 'occupancy holding' is found occasionally in the Act itself, e.g., in Section 113. Possibly it is used as a short way of referring to a holding, when held by raiyat with a right of occupancy. But as a general rule the Act speaks of a raiyat with a right of occupancy. The view which I have always taken is that it is inaccurate to speak of an occupancy holding. To illustrate my meaning take a certain parcel of land in a village. It is let out to A, who is a settled raiyat of the village. He has a right of occupancy in the land.
14. But suppose it is let out to B, a person who is a complete stranger and without any right of occupancy. His interest in the land is entirely different from A and he has no of right occupancy. So the incident of the tenancy depends not on the particular piece but the person who holds it and it is difficult to see how a right of occupation is anything but a personal right peculiar to the person, who holds the land and not to the land itself. As was pointed out in the case of the Midnapur Zemindary Co. v. Hrishikesh Ghose  41 Cal. 1108, Section 26 deals with the devolution of the right of occupancy and not of a holding pure and simple and as the right of occupancy is a creature of a statute and a doubt had been expressed as to the bent-ability of right of occupancy under Act X of 1859, there was a good reason for making other provision in relation to a right of occupancy which would not apply to the ordinary holding of a raiyat. A consideration of Sections 19, 30, 21, 22, 23 and 26 makes It clear that the right of occupancy is a right peculiar to a particular person and not to a particular parcel of land or holding. The conclusion to which I come Is that an occupancy right is a personal right. The use of the expression 'as other immovable property' in Section 26 had helped to add to the confusion, it being argued that as the word 'other' is used it must mean that an occupancy right is immovable property. If however this was the meaning the section would be dearly superfluous, I may now deal with an argument which was put forward that before the passing of the Tenancy Act of 1885 an under-raiyat or sub-tenant was a raiyat. Mookerjee, J., dealt with the question in the case of Kamini Sundari Dasi v. Prasanna Kumar Sen  24 C.W.N. 685 and It Is unnecessary for me to discuss it for I entirely agree with the conclusion to which the learned Judge came. (See page 689). It has been argued that If the occupancy right of an under-raiyat is not heritable what advantage does he get from it. The simple answer to this is that he enjoys all the rights of an occupancy raiyat. His heirs do not enjoy the right of. inheritance that the heirs of the occupancy raiyat would have. It is perhaps unnecessary to recaplulate what these rights are. The conclusion to which I have coma is that whatever may be the origin of a right of occupancy heritability of such a right is a creature of the statute created by Section 26 and that outside the statute there is no right of heritability on such a right and to determine if the occupancy right of an under-raiyat is heritable we must look to the Act itself. Section 26 specifically makes the occupancy right of a raiyat heritable. But the section makes no reference to under-raiyats nor is there any section which directly refers to the heritability of an occupancy right held by an under-raiyat. The expression raiyat does not include an under-raiyat. See Section 4 of the Act where tenants are divided into tenure holders, raiyats and under-raiyats. Each of these classes of tenants is defined and they are kept distinct throughout the Act). Section 5(3) makes the distinction between raiyat and under-raiyat quite clear.
15. The framers of the Act had in their mind the possibility of an under-raiyat having a right of occupancy. [See Section 113(1) where under-raiyats with a right of occupancy are referred to]. The conclusion is therefore Inevitable that they deliberately excluded under-raiyats with a right of occupancy from the operation of Section 26. It might no doubt be open to the under-raiyat to prove that by custom or usage the occupancy right was heritable (Section 183, Bengal Tenancy Act.) This he has not attempted to do nor apparently was it ever his case. My learned brother is however of opinion that he should be given an opportunity to prove this If he can and so I agree with the order of remand he proposes.