Geidt and Mookerjee, JJ.
1. On the 14th January 1898, some choukidari chakran lands were resumed by the Government, and settled with the Maharaja of Burdwan. On the 26th November 1898, Satcowry Banerjee obtained a permanent lease of the lands from the Maharaja and, subsequently, on the 7th June 1899 conveyed his leasehold interest to the plaintiff. On the. 17th July 1900 the plaintiff instituted the present suit to eject the defendants on the ground that their tenancy, if any, under the choukidars gave them the position of a tenant-at-will, and that such tenancy had terminated on the resumption of the lands. The defendants pleaded that they had acquired rights of occupancy and were not liable to he ejected. The Court of first instance held that the defendants had been in occupation of the lands as cultivating tenants under the chowkidars, that the rent receipts from 1846--1898, which they had produced to prove their possession for many years, were genuine, and, that they must be treated as raiyats, who had acquired a right of occupancy and were not liable to he ejected. The learned Munsif accordingly dismissed the suit, and, upon appeal, his decree has been affirmed by the learned District Judge.
2. The plaintiff has appealed to this Court, and, on his behalf it has been contended, that a chowkidar holds his chakran lands for the performance of service, that his interest therein is inalienable beyond his term of office, that any tenant, whom he may settle on the land, can have no higher position than that of a tenant-at-will, and, that having regard to the language of Section 181 of the Bengal Tenancy Act a tenant under a chowkidar cannot acquire the statue of a raiyat so as to affect the incident of a service-tenure, that every holder thereof is entitled to take it in the condition in which it was created. The question raised before us, is not altogether free from difficulty, and, we think that there is considerable force in the contention that, as was pointed out by Hellish L.J. in Great Western Railway Co. v. Smith (1875) L.R. 2 Ch. D. 235, 253 upon general principles, when a lessee creates an under-lease or any other legal interest, when the lease is forfeited, the under-lessee us the person claiming under the lessee, loses his estate as well as the lessee himself. But we are of opinion that it is unnecessary for us to decide the true effect of Section 181 of the Bengal Tenancy Act in the present case, which must be decided on other grounds. As found by the Courts below, the tenancy upon which the defendants rely, was created at least as far back as 1846, that is more than twelve years before Act X of 1859 was passed. Having regard therefore to the language of Section 6 of Act X of 1859, which was held by the decision of the Full Court in the case of Thakhooranee Dossee v. Bisheshur Mookerjee (1865) B.L.R. Sup. 202 : 3 W.R. (Act X) 29, to be retrospective in its operation, so as to confer a right of occupancy as soon as the Act came in force, upon tenants, who had cultivated or held lands as raiyats for twelve years, it follows that the defendants in the present case had acquired a right of occupancy in 1859. This conclusion is not affected even if we assume that the defendants were originally mere tenants-at-will, for, as pointed out by Mr. Justice Dwarkanath Witter in Hyder Buksh V. Bhoopendro Deb Coomar (1871) 15 W.R. 231 though they might have been originally tenants-at-will, they acquired a right of occupancy under the provisions of Section 6, Act X of 1859, as they and their ancestors had held or cultivated the lands in dispute for a period of more than twelve years. Consequently, the right of occupancy acquired before 1859, would be maintained under the Act of 1859, as also under the provisions of Section 6 of Act YIII of 1869 B.C., and would continue to exist under Section 19 of the Bengal Tenancy Act; see also the ease of Hurry Ram v. Nursingh Lal (1893) I.L.R. 21 Calc. 129. We may add, that the view we take of the acquisition of occupancy rights in chowkidari chakran land under Act 3 of 1859, is supported by the decision of this Court in the case of Adhore Chunder Bahadoor v. Kisto Churn (1877) 6 Leg. Comp. 15 (Sec. App. No. 2302 of 1875) decided by Markby and Prinsep J.J. It follows, therefore, that the defendants are occupancy raiyatu and not liable to be evicted as trespassers.
3. The appeal fails and must be dismissed with costs.