Beverley and Gordon, JJ.
1. In this case the plaintiff sued for a four-anna share of the rent of a certain jote on the allegation that the jote in question had been purchased by the defendants 1 to 3 in the name of defendant No. 4. The defendants 1 to 3, who are co-sharers in the mouza with the plaintiff, deny the purchase of the jote. The defendant No. 4 in his written statement alleged that the defendants 2 and 3 had purchased the jote, benami, in his name, and that defendants 2 and 3 were in possession.
2. The first Court found that the defendants 1 and 2 had purchased the jote in the name of defendant No. 4, and were in possession of the jote, and decreed the suit against the defendants 1 to 4. This decree was reversed by the Subordinate Judge on the ground that under Section 20, Sub-section (7), of the Bengal Tenancy Act, the defendants must be presumed to be ryots with a right of occupancy, and therefore under Section 22, Sub-section (2), the right had merged in their superior right as proprietors, and that no rent could be claimed by the plaintiff therefor, and he accordingly allowed the appeal and dismissed the plaintiff's suit.
3. It is contended in second appeal that the Lower Appellate Court is wrong in law in its interpretation of Sections 20 and 22 of the Bengal Tenancy Act, and in reply to that the respondent has endeavoured to support the decree of the Lower Appellate Court by showing that there is no legal evidence of the purchase of the jote, by the defendants and of their possession in pursuance of it.
4. We think it is impossible to say that there is absolutely no evidence of the purchase, although in our opinion that evidence is extremely slight, and had we to decide the point upon the evidence, we might have come to a different conclusion, but there being some sort of evidence, the lower Courts were justified in finding as a fact that the defendants had purchased the jote, and we cannot interfere with that finding of fact.
5. Then as regards the other point raised by the appellant, it appears to us that, whether or not the jote was an occupancy holding, Section 22, Sub-section (2) of the Bengal Tenancy Act does not operate to prevent the landlord from recovering the rent of the holding. Sub-section (2) runs as follows: 'If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person.' That is to say, the occupancy right will cease to exist, but it does not follow that the tenancy will be altogether extinguished. The third person mentioned in the clause must be held to include every person interested other than the transferor and transferee. So that the acquisition of an occupancy right by a proprietor would not affect the right of a co-sharer landlord to receive his share of the rent of the tenancy.
6. That being so, the decree of the Lower Appellate Court must be reversed, and that of the first Court restored with costs in both the Appellate Courts. The finding of the Appellate Court being that the defendants 1 to 3 purchased the jote the decree will be against them, and the suit will be dismissed as against defendant No. 4.