Nasim Ali, J.
1. This is an appeal on behalf of the plaintiffs in a suit for possession. The plaintiffs' case was that one Ananda Mohan Sutradhar was a raiyat under Madan Mohan Sutradhar, the predecessor of the plaintiff; that the raiyati holding was purchased by the landlord in execution of a rent decree; that before the auction sale the predecessors of the first party defendants held the disputed lands as an under-raiyat for a period of nine years. It was further alleged by the plaintiffs that as the period of nine years had expired the plaintiffs were entitled to recover khas possession. The defence of the defendant was that after the auction purchase of the raiyati right the defendants ceased to be under-raiyats and that they were automatically raised to the status of raiyats. The Courts below have concurrently dismissed the plaintiffs' suit. Hence the present appeal by the plaintiffs. The learned advocate for the appellants however urges that the lower appellate Court was in error in holding that the first party defendants were raiyats. It was contended by the learned advocate that by the sale of the raiyati under which the defendants held the occupancy right only ceased to exist but the raiyati continued. In support of this contention certain decisions of this Court were placed before me. There cannot be any doubt that this was the law as it stood before the amendment of 1908. By the Eastern Bengal and Assam Tenancy Amendment Act of 1908 the original Section 221 was amended. The effect of the amendment is that if the purchaser is the landlord he shall have no right to hold the land as a tenant but shall hold it as a permanent tenure holder or proprietor as the case may be. The amendment makes it absolutely clear that not only the occupancy right shall cease to exist but that the raiyati itself will disappear. This view is supported by a decision of this Court in the case of Hochanuddi v. Abdul Hakim Mridha, 1926 Cal 158. This case also lays down that if the raiyati ceases to exist, then the tenants who held as under-raiyats before the auction purchase cannot be said to be holding under raiyats and consequently they cannot be said as under-raiyats as defined in the Bengal Tenancy Act. In my judgment the lower appellate Court is right in holding that the defendants are not under-raiyats and consequently are not lisble to be evicted. It was however urged by Mr. Sen that the decision in the case of Eakuf Ali v. Meajan, 1916 Cal 343 is against this view. It however appears that the point which has been raised in the present appeal was not specifically raised and decided in that appeal. On the other hand the point for decision in the present case was expressly raised and decided in the case reported in Hochanuddi v. Abdul Hakim Mridha, 1926 Cal 158 referred to above. The view taken by the lower appellate Court appears to me to be supported by the terms of the section.
2. The result therefore is that this appeal is dismissed. But in the circumstances of this case there will be no order for costs in this appeal. Leave to appeal Under Section 15 of the Letters Patent has been asked for in this case, The leave is refused.