1. This appeal arises out of a suit for ejectment. Plaintiff alleged that his father was the protected ticcadar and landlord of the village in which the lands in dispute are situate, that the defendants father held the lands which are Bhogra lands under the plaintiff's father as a sub-tenant that the defendants have no right to continue in possession of the lands against the plaintiff's will and prayed for recovery of khas possession of the lands.
2. The defence was that long before this plaintiff's father became ticcadar of the village, the lands were leased in perpetuity to the defendants' ancestors by the then Gauntias (proprietors) of the village and they had at great cost and labour broken up the lands and made costly improvements.
3. Both the lower Courts have dismissed the suit.
4. The plaintiff has appealed to this Court and it has been contended on his behalf that no permanent right can be acquired by a tenant in Bhogra lands which are sir lands as defined in Section 4 A of Act XVIII of 1881, that is, to say the demesne Or permanent home-farm land of a proprietor, and that the policy of the law, is that such lands cannot be transferred by landlords who have always the right to eject the tenant of such lands, and Sections 44 and 45 of Act XI of 1898 are relied on in support of the contention.
5. It has been found, however, in the case that though the plaintiff is the ticcadar and the lands are Bhogra lands, the defendants' great-grand-father obtained a perpetual lease of the lands from the then Gauntias (proprietors) many years ago in consideration of certain valuable improvements made by him in the village at a cost of about Rs. 2,000, that defendant is a permanent tenant of the lands in suit and as such is not liable to be ejected. The Court of first instance finds that Akhillo the then Gauntia, asked Gadhao, the defendants ancestor, 'to make a kata in the village so that the newly made fields may not suffer for want of irrigation and promised that if he made a kata he would be given some of those fields. Gadhao agreed to comply if the fields were given, him permanently. Gadhao made a kata and band and Akhillo gave him the land in perpetuity' and that the possession of the defendants and their ancestors extends over half a century.
6. The lease was granted to the defendants' ancestor long before the Acts of 1831 and 1898 were passed and I do not find anything in the Acts referred to prohibiting the proprietors themselves from granting permanent leases in consideration of valuable improvements to be made in the village, at any rate before those Acts were passed.
7. Section 45 of Act XI of 1898 does not apply to Bhogra lands (see Clause 8 of Section 45), Section 44 lays down that a subtenant cannot acquire an occupancy right and such a right cannot be acquired in sir land. It is contended that defendant is a subtenant' within the meaning of Section 59 of the Act and that he can hold only on such terms as may be agreed upon between him and his landlord. But the question does not appear to have been raised in the Courts below, and it depends to a certain extent upon facts which have not been found in the case. In the view taken above, however, it is unnecessary to discuss this matter any further.
8. In the next place, it is contended that there is no finding that plaintiff's father was not a Shikmi Gauntia at the time of the alleged lease to the defendants' ancestor and that if he was a Shikmi Gauntia at the time, the lease would not bind the plaintiff and that it was for the defendants to show that plaintiff's father was not a Shikmi Gauntia at the time of the lease when it is shown that he was so recorded in the settlement papers. It is pointed out that under Section 65 A of Act XVIII of 1881, he could not have been recorded unless he bad been so for 20 years before the settlement.
9. I do not think this contention has any force. It is found that defendants' ancestor obtained the lease more than half a century ago from the then proprietors of the village and the facts that plaintiff's father was recorded as ticcadar some years ago cannot throw the burden upon the defendants to prove that he was not a proprietor when the then proprietor settled the lands with the defendants ancestor some 50 years ago.
10. Lastly, it has been contended that the learned Subordinate Judge, having found that plaintiff was the protected ticcadar of the village, ought to have given a decree for rent against the defendants. But the plaintiff did not claim any rent in the present suit nor slate the period for which the rent was in at rears. He only sued for khas possession.
11. As he has been found to be the protected ticcadar of the village he can bring a fresh suit, properly framed, for rent against the defendants.
12. The decree of the lower appellate Court is right and this appeal is dismissed with costs.