1. This is an appeal against an appellate decree of the Subordinate Judge of Chittagong which allowed in effect the whole e of the plaintiff's claim. The plaintiff sued for khas possession of seven plots on declaration of title, the plots appertaining to Noabad Taluk Mohammad Safi in Mouza Khata. gong. The plaintiff acquired title in the taluk by purchase in a revenue sale, and the defendants contend that they have protected interests under the provisions of Sections 12 and 14, Land Revenue Sales Act of 1868. The tenants in plots Nos. 972, 973 and 1004/1052 claimed protection under Section 14 of the Act as rayats having a right of occupancy, and the trial Court found against them. Those interested in plots Nos. 972 and 973 filed a cross-objection when the plaintiff appealed with respect to other plots, but the cross-objection was dismissed. They have preferred an appeal to this Court but this had not been pressed, and it is dismissed.
2. The tenants in plots Nos. 954 and 1004/1054 also claimed protection as rayats having a right of occupancy; the trial Court found in their favour but the appellate Court allowed the plaintiffs' appeal holding that the defendants having failed to prove that they were actual cultivators, their claim for protection could not be sustained in view of the decision in Turner Morrison & Co. Ltd. v. Monmohan Chowdhury . The tenants in plots Nos. 1004/1055 and 1004/1056 claimed protection both under Section 14 as rayats having rights of occupancy, and also as being protected by the third exception in Section 12 of the Act since they held their tenancy under a tapa or under-tenure which itself was protected by this exception. The trial Court found both points in favour of the defendants. The appellate Court found against the defendants in regard to their claim for protection as rayats having a right of occupancy, its reasons being the same as in the case of the tenants of plots Nos. 954 and 1004/1056; the appellate Court appears entirely to have ' overlooked the point arising under the third exception to Section 12.
3. In our opinion the appeals of the tenants who claim protection under Section 14 as rayats must fail, but the tenants of plots Nos. 1004/1055 and 1056 are protected since the superior landlord holding the tapa cannot be ejected. Turner Morrison & Co. Ltd. v. Monmohan Chowdhury related to a matter under the proviso to Section 37, Land Eevenue Sales Act, 1859, the terms of which are identical with those of Section 14 of the Act of 1868. In that case the Judicial Committee approved the view expressed by B.B. Ghose, J., in the judgment under appeal reported in Arjoon Singh v. Emperor : AIR1929Cal769 in which he stated that the term raiyat in the Act of 1859 could not be given the same meaning as the term raiyat as defined in the Bengal Tenancy Act, 1885, which definition includes the successor in interest of a raiyat, and that the term therefore must be taken to mean the person who actually cultivates the land or has acquired it for the purpose of cultivation, and that the object of the proviso is 'that actual cultivators who 'have acquired a right of occupancy would not be disturbed in their possession.' So far as the right of occupancy itself is concerned, however, the view of this Court is that the proviso to Section 37 of the Act of 1889 is not limited to its operation to rights acquired by the means indicated in the Rent Act of Sarat Chandra Eoy v. Asiman Bibi ('04) 31 Cal. 725, discussed in the judgment of Richardson J. in Sarbeswar Patra v. Bejoy Chand ('22) 9 A.I.R. 1922 Cal. 287. It is not altogether easy to reconcile these views, but it is not necessary to pursue the matter here, since the defendants have only rights of occupancy under the provisions of later Act, viz., the Bengal Tenancy Act of 1885; but accepting that this would be good for the purposes of Section 14 of the Act of 1868, they must still fail on the basis of the decision in Turner Morrison & Co. Ltd. v. Monmohan Chowdhury . Mr. Chandra Sekhar Sen, appearing for the defendants, has urged that the defendants being shown as 'rayats sthitiban' are clearly cultivators in respect of some land in the village, though they have failed to prove that they cultivate the lands in suit, and he refers to the terms of Section 6, Rent Act, 10 of 1859, to the effect that
every raiyat who has cultivated or held land for period of 12 years has a right of occupancy in the land so cultivated or held by him....
and urges that the defendants have ' held' the lands in suit, and are otherwise cultivators of other lands. The contention does not seem to be of any assistance, since the land 'held' under Section 6 must be the land in respect of which the right of occupancy is to be acquired under the provisions of the section itself. We think therefore that the defendants' claim for protection in respect of their occupancy rights must be rejected for the reasons given by the lower appellate Court. In regard to the two Plots Nos. 1004/1055 and 1004/1056 held under the tapa we think that the trial Court was correct in its view of the note in the khatian of the current settlement of the taluq. This note was made apparently in accordance with the terms of Rule 437(1) of the Survey and Settlement Manual, and shows, we think, that at the time of the current temporary settlement the tapa was recognized as binding against Government - except so far as regards the provisions of Section 191, Ben. Ten. Act. We think therefore that the tapa comes within the terms of the Excp. 3 to Section 12 of the Act of 1869, and that the appeal must be allowed with respect to these two plots. The appeal is therefore dismissed with costs so far as regards the defendants claiming in Plots Nos. 972, 973, 374, 1004/1054, and is allowed with costs as regards the defendants having interest in Plots Nos. 1004/1055 and 1004/1056, the decree of the trial Court in respect of these plots being restored.