1. In the suit out of which this appeal arises the plaintiffs sued the defendants for ejectment from the land in suit on the ground that the defendants were under-raiyats and, on the expiry of their tenancy, they were liable to ejectment under the provisions of Section 48-C(c), Ben. Ten. Act. The case for the defendants was to the effect that they were protected from eviction under the proviso to Section 48-0, Ben. Ten. Act. The first Court decided that the defendants were entitled to protection and the plaintiffs' prayer for khas possession was therefore rejected and their suit was dismissed. The plaintiffs then appealed and the lower Appellate Court held that the defendants had not been in continuous possession of their holding for a period of 12 years and in these circumstances the plaintiffs were entitled to eject them. Defendant 1, Ali Ahammad, has now appealed to this Court. The first point urged in favour of the appellant is that the lower Appellate Court has placed a wrong interpretation on Clause (2) of proviso 1 to Section 48-C, Ben. Ten. Act. Thi3 proviso is to the effect that an under raiyat shall not be liable to ejectment on the ground that the term of his lease has expired if he has been in possession of his land for a continuous period of 12 years. The findings of the Courts below are to the effect that the appellant was in possession of the holding from which the plaintiffs seek to evict him as an under-raiyat from 1329 until the end of Pous 1338 B.S., when the second under-raiyati lease which had been granted to him on 7th Magh 1333 B.S. expired. Thereafter it appears that the pltintiffs took the demised land into their khas possession and granted to the appellant Ali Ahammad and his brother a barga lease in respect thereof from Magh 1338 to Pous 1339 B.S. Again, on the expiry of the barga lease the plaintiffs granted Ali Ahammad another under raiyati lease with effect from 1339 to 1343 B.S. and it was when this last lease expired that the plaintiffs instituted the suit out of which this appeal arises for ejectment of the defendants.
2. It is argued on behalf of the appellant that he must be regarded as being protected under proviso (1)(2) to Section 48-C, Ben. Ten. Act, because, from the facts found by the Courts below, it would appear that he must have been in possession of the land which is the subject-matter of the suit at any rate with effect from 1329. In support of this contention reliance is placed upon a decision of this Court in Biswambar Chakravarty v. Kalidas Dhupi (1936) 40 C.W.N. 1275 in which the argument was advanced that, in order to bring this clause into operation, the under-raiyat must have been in possession as an under-raiyat for more than 12 years. This argument was rejected by Jack J. on the ground that the Section did not bear the suggested interpretation. I am however not in agreement with the views adopted by the learned Judge in the above cited decision. In my view, the language of proviso (1)(2) of Section 48-C, Ben. Ten. Act, clearly implies that, if an under-raiyat claims protection from eviction under this proviso, he must show that he has been in continuous possession of the demised land as an under-raiyat for a period of 12 years or more. The Section definitely states that the under-raiyat is protected if he has been in possession of his land for a continuous period of 12 years. As long as a person is an under-raiyat he must of course be regarded as a tenant in view of the provisions of Section 4(3), Ben. Ten. Act and as a tenant he has numerous statutory rights which have been conferred upon him by the provisions of the Bengal Tenancy Act. It is probably on this account that the land held by an under-raiyat has been described as his land in the proviso which we are now discussing.
3. It is however clear from the proviso to Section 3 (17), Ben. Ten. Act, that a bargadar is not regarded by the Legislature as a person who cultivates his own land. On the other hand, it is expressly stated in this proviso that a person who under the system generally known as 'adhi,' 'barga' or 'bhag,' cultivates the land of another person is not a tenant except in certain definite conditions which will not apply in the present case. It follows therefore that the continuous possession to which reference is made in proviso (1)(2) of Section 48-0, Ben. Ten. Act, must be continuous possession by a person who by reason of his status as an under-raiyat is entitled to say that the land is his. Obviously, no such claim could be made by a person in the position of the appellant in this case, who, for a year before the lease, Ex. 3-C which expired in 1343, held the demised land as a bargadar. I have carefully examined the terms of the barga lease, Ex. 3(b) and in my view there can be no doubt from the document that the intention of the parties to that lease was that Ali Ahammad and his brother should hold the demised land as the servants of the lessors and that, during the period of the lease, they should have no status as tenants. In other words, while the barga lease was in operation the demised land was in the possession of the plaintiffs and not in that of the defendants. I am therefore clearly of opinion that the defendants were not protected under proviso (1)(2) of Section 48-C, Ben. Ten. Act. With regard to proviso 2 however the appellant is in a stronger position as it is provided therein that in the case of under-raiyats other than those described in Clause (1) of the proviso, they shall not be liable to ejectment on the grounds specified in Clause (c) and (d) of the Section
unless the landlord has satisfied the Court that he requires the land for his homestead or for cultivation by himself or by members of his family or by tired servants or with the aid of partners.
4. It is clear therefore that before under-raiyats in the position of the defendants in the suit out of which this appeal arises can be ejected the Court must come to a clear finding on the point whether or not the landlord requires the land for the purposes mentioned in proviso 2. This question has not been considered by either of the Courts below and it is therefore necessary that the case should be remanded to the lower Appellate Court for a decision on this point. The judgment and decree of the lower Appellate Court are therefore set aside and the case is remanded to that Court for further consideration in the light of the above observations. Costs will abide the final result. The parties will be at liberty to adduce such further evidence on the above-mentioned point as they may consider necessary. Leave to appeal under Clause 15, Letters Patent is refused.