1. This is an appeal by the plaintiffs in an action for ejectment. The plaintiffs and the defendant were co-sharers in a taluq which comprised the disputed lands as an occupancy holding of the Dhars. On the 5th May 1899 the first plaintiff purchased the occupancy holding in execution of a mortgage-decree. The legal effect of this purchase was that the holding ceased to exist as an occupancy holding in the hands of plaintiff as co-sharer landlord and the plaintiff held the land as non-occupancy raiyat. On the 17th April 1900 he sold a portion of the land of the holding to one Raj Chandra Dhar. On the 5th November 1908, the plaintiff in execution of a money-decree re-purchased the transferred land. We are of opinion that the effect of the sale to Dhars was not to break up the tenancy but to constitute the plaintiff and the transferee joint tenants of a non-occupancy holding. The effect of the re-purchase by the plaintiff was to make him, as before, the sole tenant of the non-occupancy holding. This was the position in the year 1913. On the 19th March of that year, the defendant executed a kabuliyat in his favour in respect of the lands comprised in the First Schedule of the plaint. It has been found that this kabuliyat did not represent any real transaction but was brought about to meet the exigencies of the situation created by a criminal case. Independently of this document, the defendant was a tenant under the plaintiff and the plaintiff now seeks to eject the defendant. Their relative potion can be easily determined. The plaintiff was non-occupancy raiyat ant the defendant was, therefore, an under-raiyat who held under a verbal lease. Consequently, the defendant could only be ejected after a service of notice to quit in accordance with Section 49 of the Bengal Tenancy Act.
2. No such notice was served. Consequently, the relation between the plaintiff and the defendant as that of a non-occupancy raiyat on the one hand and under-raiyat on the other has not been terminated in accordance with law and, therefore, the plaintiff was not entitled to eject the defendant from this holding. There is, thus, no escape from the conclusion that the suit must stand dismissed with costs in all Courts.
3. We have not taken into consideration the consequences of the decree in the partition suit between the plaintiff, the defendant and their co-sharers, as it is not necessary, to take that decree into account for the purposes of the present appeal.