Lawrence H. Jenkins, K.C.I.E., C.J., Woodroffe, Mookerjee, Carnduff and D. Chatterjee, JJ.
1. The decision of the question referred in this case depends upon the proper construction of Section 49 of the Bengal Tenancy Act. Chapter VII of the Act, which deals with the under-raiyats, consists of two sections. Section 48, speaking of the limit of rent recoverable from under-raiyats, divides rent into two classes: rent payable under a registered lease or agreement, and rent payable in any other case, thus comprising all classes of under-raiyats. Section 49, dealing with the ejectment of under-raiyats, divides them into two classes: Clause (a) speaks of those who hold under a written lease, and Clause (b) speaks of those who hold otherwise than under a written lease. The term 'written lease' in Clause (a) is necessarily restricted by the word 'term' used before to written leases which arc for a term or period of duration mentioned in the lease. The word 'term' is not repeated in Clause (b), and it is therefore contended on the authority of the case of Madan Chandra Kapali v. Jaki Karika (1902) 6 C.W.N. 377 that the case of an under-raiyat who holds under a patta which does not provide for any period of duration, is omitted from the purview of the section, and that he cannot therefore be ejected except under Section G6 for non-payment of rent. The Court is of opinion that there is no sufficient reason for holding that the Legislature made any such omission either by intention or by mistake. As regards intention, there is no reason why a tenant of this class should attract any particular favour from the Legislature. As regards mistake, it must be remembered that this class of pattas called mela pattas or be-miadi pattas are very common in Bengal and could not have escaped notice. Looking at the whole scheme of the Act and the manner in which the different classes of tenants are dealt with in its different provisions, the Court holds that the proper construction to be placed on the word. 'written lease' in Clause (b) is to read them as indicating a written lease of the same kind as that mentioned in Clause ( ).
2. The answer to the Reference, therefore, is that the case of an under-raiyat holding under a patta executed before the passing of the Bengal Tenancy Act and not expressly providing for the period of its duration conies within Clause (b) of Section 49, and the notice must be provided thereunder.
3. In this view of the case, the appeal must be decreed with costs.