Mitter and Beverley, JJ.
1. The question that we have to decide in this case is whether, upon the facts found by the lower Courts, the plaintiff has acquired a right of occupancy in respect of the land in dispute.
2. The facts of the case are these: The land in dispute lies within a four-anna divided putti. It lies wholly within that putti, that putti being divided by metes and bounds from the other putti. It is not stated in the plaint, but it appears from the deposition of the plaintiff, who was the only witness examined by the Munsif, that the land in dispute was let out to him from the beginning of the year 1278 or 1871. It further appears from that deposition that in the year 1878 he acquired by purchase a fractional share in the proprietary right of the putti itself. The present suit was brought on the 30th of March 1886, the plaintiff alleging dispossession by the defendants on the 1st Jeyt 1292, that is, some time in May 1885. Upon these facts the Munsif, accepting them as established for the purpose of raising this question of law, decided that the plaintiff, after his purchase of a fractional share in 1878, could not acquire a right of occupancy. It is clear that if the Munsif's view is not right the right of occupancy would be deemed to have been acquired by the plaintiff on the completion of twelve years possession, that is to say, some time in the year 1883.
3. The Lower Appellate Court has referred to the provisions of Section 22 of the Bengal Tenancy Act; but, as shown above, if the Munsif's view was not right, the right must have been acquired by the plaintiff under the old Act, namely, Bengal Act VIII of 1869. If after the Bengal Tenancy Act came into operation there was no such dealing with the property as would bring the present case within any of the clauses of Section 22, the provisions of that section would not be applicable; and there is no such case established by either party. Therefore we may put aside Section 22 altogether from our consideration. The question therefore is, whether under Section 6 of the old Act, namely, Bengal Act VIII of 1869, after the purchase by the plaintiff of a share in the zemindari, he could acquire a right of occupancy in the land in dispute if he continued to hold it after his purchase for twelve years from the date of the commencement of his holding. If after his purchase he was legally in possession of the whole of the disputed land as a ryot, and if the relation of landlord and tenant existed between himself on the one hand and the proprietors on the other, we see no reason why, in the express words of Section 6, he should not be considered to have acquired a right of occupancy after completing his occupancy as a ryot for twelve years. The question of merger does not arise at all in this case. If he had been the proprietor of the entire zemindari, no doubt then in that case the question of merger would have arisen. But here the only right under which he held that share of the disputed land, which is not covered by the share of the zemindari interest which he purchased, was his ryoti title in respect of it. And therefore it must be considered that, unless that title was extinguished by operation of law, he continued to be a ryot in respect of the whole disputed land. We are not aware of any provision of law according to which his ryoti interest in respect of the whole of the disputed land would be extinguished by his purchase of a fractional share of the zemindari. In the case of Jardine, Skinner & Co. v. Sarut Soondari Debi L.R. 5 I.A. 164 : 3 C.L.R. 140 this question was considered both by the High Court 25 W.R. 347 and their Lordships of the Judicial Committee. That was a suit brought by Rani Sarut Sooudari to recover possession of a two annas eleven gundas share of upwards of 20,000 bighas of chur land. She was the owner of that fractional share of the zemindari in which the land in dispute in that case was situated. The claim in the suit was resisted upon two grounds: First, that under an ijara lease the defendants were entitled to retain possession of the land; and, secondly, chat they had acquired a right of occupancy in the land because they held it as jotedars before the ijara was granted to them. The High Court was of opinion that the defendants' possession of the land in suit was not that of jotedars, but that they were in possession of it as ijaradars; and that Court further held that as ijaradars they could not create in themselves a right of occupancy. But the Court added that, 'even if that were not so, it is impossible to say how the defendants could have acquired either a right of occupancy or a jotedari right in respect of an undivided share of an estate,' that is to say, the Court was of opinion that, as the defendants were the ijaradars of a fractional share, and thus represented the zemindar as regards that share, their possession as jotedars, even if it be accepted as true as against the owners of an undivided fractional share, could not confer upon them a right of occupancy. But the Judicial Committee on appeal were of opinion that this view was not correct. They said: 'Their Lordships do not concur in the view thus expressed by the High Court to the effect that a right of occupancy cannot be acquired in respect of an undivided share of an estate.'
4. We are, therefore, of opinion that, if the plaintiff's case was stated in the plaint and supplemented by his deposition be established, he would be entitled to a decree on the ground that he has a right of occupancy in the land in suit. But the Munsif did not take the other evidence of the plaintiff or any evidence on behalf of the defendants. We, therefore, set aside the decrees of the lower Courts and remand this case to the Court of First Instance for completion of the trial.
5. Cost will abide the result.