1. These two appeals arise out of two suits which were instituted by the plaintiff to eject the defendants on the allegation that they hold the land as under-raiyats and the periods of their leases have expired. The alleged under-raiyati holdings consist of two-thirds and one-third shares of the land of a holding which belonged to one Amjad Ali Mridha under a purchase made by him in 1322. In 1324 Amjad Ali granted the two under-raiyatis for a period of nine years. In 1332 the plaintiff purchased the interest of the heirs of Amjad Ali. The suits were dismissed by the Munsif and his decision has been affirmed on appeal by the Subordinate Judge. The plaintiff has then preferred these appeals. The controversy in these appeals relates to the question of merger, which was the main plank in the case for the defence and which arises in this way Amjad Ali had, at the date of his purchase of the raiyati in 1322, a share in the, howla to which the raiyati was subordinate. It was contended that on his purchase the subordinate interest which ho acquired became merged in the superior interest which he had held from before and that, accordingly, the Subordinate interest which Amjad Ali created in favour of the defendants could only be a raiyati and not an under-raiyati.
2. It has been found that the holding which Amjad Ali purchased was a non-transferable occupancy holding. The Subordinate Judge was of opinion, on the strength of two decisions of this Court, one in the case of Roshan Ali v. Chandra Mohan AIR 1923 Cal 701 and the other in the case of Hochanuddi v. Abdul Hakim AIR 1926 Cal 158, that Section 22, Ben. Ten. Act, would apply to all occupancy holdings, transferable as well as non-transferable. This view, it may be stated, is not the view generally accepted by this Court and is directly antagonistic to the large body of cases which have firmly laid down the law that a purchase by the cosharer landlord of a non-transferable occupancy holding, in respect of which he is a cosharer landlord entitles his cosharers to treat the holding as abandoned and to take khas possession of it to the extent of their shares: see Sarat Chandra Saha v. Bepin Behary Chakravathi : AIR1933Cal687 .
3. Indeed the learned advocate for the respondent has not sought to support the view on which the learned Judge has proceeded, but has endeavoured to make out that independently of that section there was a merger. I have carefully considered his arguments, but I regret I do not see how it can be said that because the holding was non-transferable, Amjad Ali should be regarded as having purchased a holding which was extinguished by the purchase, so that the only interest which Amjad Ali was capable of creating was a raiyati and not an under-raiyati. I do not find any indication of any intention on the part of Amjad Ali not to keep his two interests separate from each other. The rent-decree which the plaintiff obtained against the defendants sufficiently established the validity of the plaintiffs' purchase of Amjad All's interest and the plaintiff seems to me to be competent to deal with the defendants just in the same way as Amjad Ali could have done.
4. On the whole I can see nothing which can rightly stand in the way of the plaintiff's obtaining a decree in ejectment against the defendants. But I agree with the Courts below in holding that the defendants are entitled to the compensations reserved by the agreements, Exs A and B. It appears that the plaintiff while making the purchase was fully alive to the contingency of having to pay the compensation in case the defendants are ejected. The result is that in my judgment these appeals should be allowed in the following terms:
5. That the decrees passed by the Courts below should be vacated and in lieu thereof a decree should be passed in plaintiff's favour to the effect that on the plaintiff's depositing Rs. 333-5-4 in the Court of first instance for payment to the defendants by the end of the current Bengali year, the plaintiff will have a decree in ejectment of Bent Suit No. 2917 of 1927, and on a similar payment of Rs. 166-10-8 in the said Court within the said time the plaintiff will have a decree in ejectment in Kent Suit No. 2916 of 1927, and it be ordered that in case the condition is not fulfilled as regards any of the suits, the appeal in connexion therewith will stand dismissed. There will be no order for costs in this litigation in any of the Courts. Leave to appeal is asked for but it is refused.