1. On the first question as to whether the land, possession of which is sought to be recovered in this suit, is khamar land or not, there was no issue framed as to that before the Munsif, nor was that question gone into as a question of fact before the Subordinate Judge. Under these circumstances I think it is too late to raise it now.
2. Upon the other point, as to whether the case falls within Sections 44 and 45 of the Bengal Tenancy Act, I see no reason to differ, notwithstanding the ingenious arguments and criticisms of Dr. Rash Behari Ghose upon the language of those sections, from the conclusion at which the learned Subordinate Judge has arrived in the matter. I think that the construction that he has put upon these sections is sound and is the right one. I agree both in the conclusion at which he has arrived and in the reasons for that conclusion. I think the appeal fails and must be dismissed with costs.
3. I am of the same opinion. I only wish to add a few words with reference to the second contention raised in the appeal, namely, that Section 45 of the Bengal Tenancy Act does not apply to this case, because there is nothing to show that the defendants were tenants of the plaintiffs after the expiry of the term of their lease. It was argued that before Section 45 could apply to the case, it must be shown that the defendants were non-occupancy raiyats of the plaintiffs, and this could not be the case unless it was shown that the plaintiffs acquiesced in the defendants' holding over upon the expiry of their lease. No doubt it is an intelligible view of things that a person who enters upon the land of another under a lease for a limited term should be treated as a trespasser the moment the lease expires, unless he obtains his lessor's consent to his holding over. But that does not appear to be the view which the Legislature has taken of the matter when it has provided, as it has done under Section 45, that for the ejectment of a non-occupancy raiyat upon the expiration of the term of his lease, there must be a notice to quit, and not only a notice to quit, but a notice served on the raiyat not less than six months before the expiration of the term. That shows that in order that the landlord may give effect to the condition that the tenancy should come to an end on the expiry of the term, he must not only not acquiesce in the tenant's holding over, but before the time for such acquiescence can arrive, and whilst the term is yet outstanding, serve a notice on his tenant. The provisions of Section 45, therefore, in my opinion, contain a sufficient answer to the argument advanced by the learned Vakil for the appellants.