Lancelot Sanderson, C.J.
1. This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Bankura.
2. The suit was brought for a declaration of the plaintiff's jote title in certain land, for recovery of possession thereof and for Rs. 15 as the price of paddy alleged to have been wrongfully taken by the defendant No. 1. The learned Judge stated the respective cases as follows:
The plaintiff's case id that in Mouzah Chuamasina he held 11 bighas of land with occupancy rights at a jama of Rs. 5. This jama was held formerly by him under the malik, Hriday Nath Sarkar; after his death under his son, Asutosh Sarcar, and then under Ashu's vendee, Haridas Chaudhury. Out of these 11 bighas, 5 bighas form the subject of the suit, The plaintiff alleges that he was in possession of the disputed land through his bhag chasi, defendant No. 2, and got his share of naon paddy of 1 bigha in 1323 and that his share of the heot paddy grown on the remaining 4 bighas was stocked in the house of defendant No. 2, but defendant No. 1 forcibly took it away on the allegation that the lands had been made khas by defendant No. 3, the Maharaja of Burdwan, by purchasing the same in execution of a decree for arrears of rent against the maliks end had been settled with him.
The substantial defense of the defendants Nos. 1 and 3 is that the interest of Asutosh Sircar and Haridas Chaudhury in the lands was that of occupancy raiyats which was purchased by defendant No. 3 on 2nd November 1914 in a rent sale, that a notice under section 167 having been given to the plaintiff, among other persons, on 7th May 1915, he became entitled to khas possession and that be has accordingly taken the paddy from defendant No. 2.
The lower Court' (i.e., the first Court; 'decreed the suit on the finding, that the status of the plaintiff's landlord was that of a tenure-holder and that the plaintiff is a raiyat with rights of occupancy which being a protected interest under Section 260, Bengal Tenancy Act, his right was not annulled by service of notice under Section 167.
3. The first question, with whish the lower Appellate Court dealt, was the status of the plaintiff's landlord. The lower Appellate Court agreed with the Court of first instance that Hriday Siraar was a tenure-holder, and that his right of an occupancy raiyat, as alleged by the defendant, had not been proved.
4. That finding, therefore, so far as it went, was in favour of the plaintiff. The learned Subordinate Judge then proceeded to consider the status of the plaintiff, and on this question he disagreed with the finding of the Court of first instance.
5. The learned Munsif had decided that the plaintiff held the land in suit as a raiyat for more than 12 years continuously, that under the provisions of Section 20 of the Bengal Tenancy Act he had become a settled raiyat of the village and that under the provisions of Section 21 of the same Act he had acquired a right of occupancy in the laud in suit. Consequently the learned Munsif held that the plaintiff had a protested interest under Section 160 of the Bengal Tenancy Act, which could not be annulled by the service of notice under Section 167 of that Act. The learned Munsif decreed the suit.
6. The lower Appellate Court overruled this last-mentioned finding and held that although the plaintiff, who was a raiyat at a fixed rate, had occupied the lands for more than 12 years, he did not acquire a right of occupancy, which was protected under Section 160.
7. The learned Subordinate Judge further held that notice had been properly served on the plaintiff, that the plaintiff's interest not being a protected one, it became annulled and that the defendant No. 3 was entitled to take khas possession of the disputed land. He, therefore, held that the plaintiff had no cause of action, allowed the appeal and dismissed the plaintiffs suit.
8. The question in this appeal is whether the decision of the lower Appellate Court on, this point is correct.
9. The facts, which it is necessary to state for the purpose of my judgment, are as follows: The land in question was settled to the plaintiff by Hriday Sircar in 1301 B.S. ( * * * * ) at a jama of Rs. 5 per annum and he had regularly paid rent for it since the year 1303 B.S.
10. The plaintiff re-claimed the lands which he himself cultivated in the first instance, and subsequently the land was cultivated by the plaintiff's 'bhag chasis.' The quantity of land is far below 100 bighas.
11. Consequently, as held by both the lower Courts, the plaintiff is a raiyat.
12. The lower Appellate Court has found that the plaintiff's jama was 'dar mokarari,' which merely meant a jama at a fixed and permanent rate of rent.' This if a finding which this Court, on second appeal, must accept, and indeed it has not been sailed in question by either side in this Court.
13. It must be taken, therefore, that the plaintiff from the beginning of his tenancy was a raiyat holding at a fixed and permanent rate of rent. It is also clear that the plaintiff held the lands in suit as to raiyat for more than 12 years continuously. On behalf of the plaintiff-appellant it was contended that in view of the above-mentioned fasts the plaintiff was, by reason of the terms of section of the Bengal Tenancy Act, a settled raiyat of the village and by reason of section or the Bengal Tenancy Act, he acquired a right of occupancy in the land in suit, that such right of occupancy was protected by Section 160 of the Bengal Tenancy Act and could not be annulled by notice under Section 167.
14. On the other hand, it was contended on behalf of the respondents (1) that the right claimed by the plaintiff is not protected under Section 160 of the Bengal Tenancy Act, because the plaintiff is not a mere occupancy raiyat. (2) That a raiyat at a fixed rent has a higher status than a mere occupancy raiyat, and that a raiyat, holding from the inception of the tenancy at a fixed rent, cannot subsequently acquire a right of occupancy, so as to obtain a protested interest under Section 160.
15. Several cases were referred to during the course of the argument. The first in order of date was Bhutnath Naskar v. Monmotha Nath Mitra 2 Ind. Cas. 675 : 13 C.W.N. 1025 : 11 C.L.J. 98, which was decided in 1909. In that case Doss, J., held that it was not possible for a raiyat of a holding at a fixed rate to have in the same holding a right of occupancy at the same time, the incidents of the two holdings being so diverse in their character.
16. There was an appeal from the Learned Judge's judgment, which was heard by Jenkins, C.J., and Mookerjee, J. Jenkins, C.J., held that the appeal should be dismissed on the ground that the interest of the defendant was a tenure and, therefore, not a protested interest within the meaning of Section 160 of the Bengal Tenancy Act; the learned Chief Justice expressly refrained from discussing the above-mentioned question which was considered by Doss, J., as it was unnecessary for the decision of the case. The other earned Judge, Mookerjee, J., did deal with that question and stated the point as follows:
As regards the second contention of the appellants that if they are raiyats holding at a fixed rate of rent they have also acquired a right of occupancy, I am unable to hold that the argument is well-founded,' and after stating aw reasons in respect thereof the learned Judge held that the view taken by Doss, J., was correct.
It was urged by the learned Vakil for the appellant that this decision of the learned Judge was not necessary for the disposal of the case, that it was not the judgment of the Court, but of one Judge only and was not binding upon this Court. This position was not denied by the learned Vakil for the respondent: I agree that, having regard to the fact that the learned Chief Justice decided the case on the ground that the defend-ants interest was a tenure and expressly refrained from giving any opinion on the point now under consideration, the case cannot be held to be binding on this Court, though it goes without saying that the observations of the learned Judge who did deal with this question, are entitled to much weight and consideration.
The next case in order of date was Abdul Gapi v. Makbul Ali 31 ind. Cas. 19 : 42 C. 745 20 C.W.N. 185 : 22 C.L.J. 223 decided by Holmwood and Chapman, JJ., on 28th July 1914. At page 748 Page of 42 C.--[Ed.], the learned Judges are reported to have said: 'It may be argued that a person who takes the tenancy originally as a raiyat fixed rates does not thereby acquire in occupancy right. But that does not imply that a man who has already obtained occupancy Rights ran by obtaining grant of fixed rent lose that occupy right. That appears to us to be neither in accordance with equity or common sense of the wording of the law
17. Reference was then made to an unreported case decided by Woodroffe and Nowbould JJ Akhil Chandra Sen v. Tripura Charan Chowdhury 29 Ind. Cas. 563 (Second Appeal No. 847 of 1913). The judgment was delivered on 26th May 1915). In that case Woodroffe, J., said as follows: From this it appears that what was given was a permanent raiyati interest described a istemrari kaimi raiyat and istemrari daimi kaimi pottah. If, this was the grant of a permanent interest, and if as is admitted, at the at the date of this grant, there was no occupancy right which had matured, then it seems to me not possible that an occupancy right which could be acquired after the date of the grant. But if we read this document in reference to this permanently as relating solely to the fixity or rent, then I think the argument of the learned Pleader for the respondents avails, that the appellants would in that case be in the Position of raiyats at fixed rates. It is not every raiyat who is protected but only an occupancy raiyat, and I think the distinction on which he has relied and which is that set out in the Bengal Tenancy Act, distinguishing occupancy raiyats, must be borne in mind, and on this point he has referred to the case Pachi Dassi v. Bala Das 13 C.W.N. 1025. I must hold, therefore, that the appellants were not occupancy raiyats. They were, therefore, not protected from eviction in respect of the Dags covered by Group No. 1'. I think that in the above judgment the name of the case Pachi Dassi v. Bala Das is a mistake. The reference, 13 Calcutta Weekly Notes 1025, is that of the case of Bhutnath Naskar v. monmatha Nath Mitra 2 Ind. Cas. 675 : 13 C.W.N. 1025 :11 C.L.J. 98, which is evidently the case the learned Judge intended to mention: Pachi Dassi v. Bala Das is reported at page 1051, and does not seem to be material to the question which was being considered by the learned Judge.
18. This judgment on the face of it appeared to be a decision directly in point; but on reference to the record it appeared that the plaintiff had purchased the Taraf at a revenue sale, and the question was whether the defendants had a protected interest under Section 37 of the Revenue Sale Law, Act XI of 1859.
19. The next case is a decision in the opposite direction, Lakhi Charan Saha v. mokar Ali 45 Ind. Cas. 25 : 27 C.L.J. 293, which was decided in Fbruary 1917 by Fletcher ad Richardson, JJ.
20. The head note is as follows:
A settled raiyat holding land which was sold for arrears of revenue, in the same village the village of which he is a settled raiyat under the terms of a permanent lease at a fixed rate of rent, has a protected interest within the meaning of the proviso to Section 37 of the Revenue Sale law.
21. The material part of the judgment is as follows:
The facts found are these: First of all, it has been found that the contesting defendant is a settled raiyat of the village within the meaning of the Bengal Tenancy Act. Secondly, it has been found that he holds the land in suit, which is in the same village as the village of which he is a settled raiyat, under the terms of a permanent lease at a fixed rate of rent. Whatever may be the law as regards other classes of raiyats, it is quite clear on the terms of Section 21 of the Bengal Tenancy Act that, contract or no contract, every raiyat who is a settled raiyat of a village and obtains a raiyatee interest in other lands in that village, acquired a right of occupancy in those other lands and if that is so, the present defendant seems to me clearly to have a right of occupancy in the land in dispute. If he has a right of occupancy, he comes clearly within the proviso to Section 37 of Act XI of 1859, and has an interest which has not been annulled by the sale for arrears of revenue.
22. It was contended on behalf of the respondent that this case was not binding on this Court, in respect of the present point, for although sections of the Bengal Tenancy Act were referred to, the question for decision was whether the defendant had a protested interest within the meaning of the proviso to Section 37 of Act XI of 1859.
23. If this be so, then the previous decision of Woodroffe and Newbould, JJ., is in the same position. In my judgment this contention is right. These decisions are not binding on this Court in respect of the point now under consideration, although the reasoning of the learned Judges may be of assistance. The reason is that the Court in both these cases was deciding whether the defendant had protected interest under Section 37 of Act XI of 1859. In this case we have to consider, whether the plaintiff had a protected interest under Section 160 of the Bengal Tenancy Act. Personally I should have been glad if this matter could have been referred to a Full Bench by reason of the importance of the question, but in view of the conclusion at it which I have arrived that neither of the two a last-mentioned cases is a decision on the point it now before us, it is not permissible for us to refer the question to a Full Bench.
24. The last case to which I need refer, is Lakhi Charan Saha v. Hamid Ali 44 Ind. Cas. 543 : 27 C.L.J. 284, which was decided in August 1917. Chatterjea and Richardson, JJ., there held that a person who has already acquired an occupancy night does not, by obtaining a grant of a fixed rent, lost that occupancy right, and such a person is protested from ejectment under Section 37 of the Revenue Sale Law. In the judgment referenda was made to Abdul Gani v. Makbul Ali 31 Ind. Cas. 19 : 42 C. 745 : 20 C.W.N. 185 : 22 C.L.J. 223 and at page 288 Page of 27 C.L.J.--[Ed.] the following passage occurs:
The case of Abdul Gani v. Makbul Ali 31 Ind. Cas. 19 : 42 C. 745 : 20 C.W.N. 185 : 22 C.L.J. 223, in so far as it holds that a person who has already acquired an occupancy right does not by obtaining a grant of fixed rent lose that occupancy right, and that such a person is protested from ejectment under Section 37, supports the view we take and to that extent we agree with that decision. If the opposite view were token, raiyats who might be holding lands for generations and who might have acquired rights of occupancy, would be liable to be ejected by a purchaser at a revenue sale, simply because they may some under the description of raiyati holding at fixed rates under the Bengal Tenancy Act, by reason of their rent being fixed in perpetuity by contract, or by reason of their holding at the same rent from the time of the Permanent Settlement or by reason of a presumption arising under Section 50 of the Bengal Tenancy Act that they have been so holding, when the clear intention of the Legislature is to protest such raiyats from ejectment at the hands of a purchaser at a revenue sale.
25. It, therefore, appears, that there is no decision of this Court in respect of the point now before us which is binding on this Court and consequently, it is necessary to consider the question with reference to the facts and the sections of the Bengal Tenancy Act.
26. The learned Vakil for the respondents did not dispute the proposition laid down in Lakhi Charan Saha v. Hamid Ali 44 Ind. Cas. 543 : 27 C.L.J. 284. So that it must now be taken that if a raiyat has acquired an occupancy right, he does not lose that occupancy right, by subsequently having the rent fixed by grant, or by one or other of the ways mentioned in that judgment, and inasmuch as there is no merger of the two status, as was, is admitted by learned Vakil for the respond, it follows that the two status, viz., that of the occupancy raiyat and that of the raiyat holding at a fixed rate, would exist in the same person and at the same time.
27. It follows, therefore, from this that it is not impossible for one person to have in-respect of the same land and at the same time a right of occupancy, and the right of a ratyat holding at a fixed rate. In other words, the two status may exist in the same person at the same time, even though the incidents of the two kinds of holdings may be diverse in character.
28. It was, however, contended, as already stated that if the status of the raiyat was that of a raiyat at a fixed rate from the inception of his tenancy, as in this case he could not subsequently acquire a right of occupancy so as to be protected under Section 160 of the Bengal Tenancy Act.
29. It seems to me however, that if a right of occupancy can be acquired by a raiyat who already holds as a raiyat at a fixed rate, there is no reason why he should not be protected as to his right of occupancy under Section 160, just as much as a person who has acquired a right of occupancy in the first instance and who subsequently obtains a grant at a fixed rate. The difference is merely in the method of acquiring the right of occupancy in the first instance and obtaining the right of a raiyat at a fixed rate, and if he subsequently, it is admitted that he has protected interest under Section 160, so far as the right of occupancy, I see no reason why he should not be equally protected under Section 160.
30. But it was urged on behalf of the respondents, and this was the real point of the learned Vakil's argument, the a raiyat having the higher status of a raiyat at fixed rate, cannot subsequently acquire the lower status of a right of occupancy. In my judgment this argument should not be accepted.
31. Section 20 is part of the chapter dealing with occupancy raiyat; but it is to be noted that the word 'raiyat' is used in that Section without any qualification. Under that section, if a person has held land situate in the village for a period of twelve years before or after the commencement of the Act continuously case raiyat' he is to be deemed to have become on the exipration of that period a 'settled raiyat of the village.'
32. What are the rights of a 'settled raiyat of the village?'
33. That is made clear by Section 21, which provides as follows:
Every person who is a settled raiyat of a village within the meaning of the last foregoing Bastion shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.' So that when a raiyat becomes a settler raiyat of a village, he has a right of occupancy in ail land for the time being hold by him as a raiyat in that village.
It is not disputed that these sections apply to the land in question in this suit but as already stated, it was urged that inasmuch as the plaintiff's interest was in its inception that of a raiyat at a fixed rate, he could not obtain a right of occupancy under Section 21. I see no reason for limiting the general: words of sections 20 and 21 in this way, and in my judgment by reason of the terms of these sections and the plaintiff's undoubted holding of the lands in question for more than 12 years continuously, the plaintiff did acquire a right of occupancy therein.
Reference was made to Clause (f) of Section 160. It does not seem to have been considered in any of the previous cases; it provides as follows: Any right conferred on an occupancy raiyat to hold at a rent which waS a fair and reasonable rent at the time the right was conferred.
34. It was admitted by both the learned Vakils that 'the rent' referred to in this clause must be a 'fixed' rent. This clause, therefore, is material, as showing that the Legislature did contemplate that a person might have Ft the same time not only a light of occupancy but also the right of a raiyat at a fixed rent, and that provided the rent was a fair and reasonable rent at the time the right was conferred, not only the right of occupancy would be protected, but the right to hold at that fixed rent also would be protected.
35. Each of the learned Vakils relied on the clause as being in his favour.
36. The learned Vakil for the respondents, while ad mitt in or that the clause went to show that the Legislature had recognised the possibility of the existence of a right of occupancy and the right of a raiyat to hold at a fixed rent in one and the same person at the same time, contended that if the Legislature had intended to protest any part of the interest of a raiyat at a fixed rate, who had subsequently become an occupancy raiyat, it would have stated so expressly and, therefore, it was only the raiyat, who could bring himself within the express words of Clause (f), who would be protected.
37. On the other hand, the learned Vakil for the appellant urged that the intention of the Legislature was that every right of occupancy; no matter how it was acquired, should be protected, and that it was further intended to protest not only the right of occupancy but also the right of the occupancy raiyat to hold at a fixed rent, provided it could be shown that such rent was fair and reasonable at the time the right to hold at the rent was conferred. In my judgment the latter is the preferable construction to place upon the clause; it seems to be an intelligible and reasonable construction
38. This, however, is not conclusive of the case and I do not base my judgment thereon. For the reasons hereinbefore mentioned and On the above-mentioned facts, in my judgment, the plaintiff had acquired in addition to his right to hold at a fixed rent, a right of occupancy, and such right of occupancy was protected under Section 160 of the Bengal Tenancy Act, The result, therefore, is, in my judgment, that the learned Munsif Was right in holding that so far as the plaintiff's right of occupancy was concerned, it was a protected interest and could not be annulled by the notice which was given by the defendant No. 3 The plaintiff consequently had not lost his right of occupancy in the land in suit, and the defendants NOS. 1 and 3 had no right to deprive the plaintiff of his share of the crops in question.
39. In my judgment this appeal should be allowed, the decree of the lower Appellate Court should be set aside and the decree of the learned Munsif should be restored. The respondents must pay the appellant's costs in this Court and in the lower Appellate Court.
40. I agree. The subject over which dissuasion has ranged is whether and to what extent the interest of a raiyat at a fixed rate, who has occupied his holding; for a continuous period of more than twelve years, id a 'protested interest' within the Meaning of Section 160 of the Bengal Tenancy Act. It is not denied that such an interest, except so far as it is protested, is an 'incumbrance' within the meaning of Section 161. Under Section 159, a purchaser of a tenure sold under the Act in execution of a decree for arrears of rent takes subject to protested interests' but with power to annul 'incumbrances.' The protested interests specified in Section 160 include:
(d) Any right of occupancy' and
(f) any right conferred on an occupancy raiyat to hold at a rent whir a was a fair and reasonable rent at this time the right was conferred.
41. The principal question in dispute is whether a raiyat at a fixed rate may become a settled raiyat of the village under Section 20 of the Act and thus acquire a right of occupancy within the meaning of Section 21,
42. The discussion must begin with the fact that a raiyat holding at a fixed rate is a raiyat' and is so classified in Section 4 of the Tenancy Act. Raiyats are there divided into three classes, the first being (a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity.' The other two classes are (6) occupancy raiyats, that is to say, raiyats having a right of occupancy in the land held by them' and '(c) non-occupancy' raiyats, that is to say, raiyats not having sash a right of occupancy.'
43. Chapter IV of the Act is entitled 'raiyats holding at fixed rates' and consists of one section, Section 18, which marks out the two special incidents of the status of such a raiyat. Firstly, he is to be 'subject to the same provisions with respect to the transfer of, and succession to, his holding as the holder of a permanent tenure' and secondly, he 'shall not be ejected by his landlord, except on the ground that he has broken a condition consistent with this Act, and on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected.'
44. Now, stopping there, in my opinion, it might plausibly be contended that the second incident amounts in itself to a statutory right of occupancy, because it protects the raiyat at a fixed rate from eviction except on one specified ground. What is the statutory right of occupancy unless it is the protection from eviction which the Act gives to a raiyat? The status of an occupancy raiyat in respect of his right of occupancy is similarly described in Section 26. The occupancy raiyat is merely protected from eviction except on two specified grounds, the first of which is 'that he has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy' and the second is the very ground on which a raiyat at a fixed rate may be evicted. The latter, therefore, would seem to enjoy under the Act a superior right of occupancy. He can be evicted only on one ground, while the occupancy raiyat may be evicted on either of two grounds.
45. It is true that a permanent tenure-holder is also protected from eviction save on the one ground on which a raiyat at a fixed rate may be evicted (Section 10). But a tenure-holder cannot claim a right of occupancy; the term is applicable only to raiyats, raiyatt being regarded as the actual occupiers and cultivators of the soil. A non-occupancy raiyat also receives some measure if protection (Section 44) but has no permanent right. The right of occupancy is a permanent right which the law guarantees to certain raiyats. Prima facie it seems anomalous that raiyats of a superior status should not, while raiyats of an inferior status should, possess that right.
46. If it be that a raiyat at a fixed rate has a right of occupancy under Section 18, the discussion ends there, But it would be unsafe to act on a view which, so far as I am aware, has not previously been suggested and is contrary to the assumption generally made. The point, as I have said, was not argued, nor is it necessary for the purpose of the present cane to say that a raiyat at a fixed rate has ipso facto a right of occupancy, inasmuch as the plaintiff has continuously held his laid for a period of more than twelve years.
47. I will assume, therefore, that while the Bengal Tenancy Act by Section 19 saves rights of occupancy acquired before November, 1885, when the Act came into force, since that date a right of occupancy in the strict or statutory sense can only be acquired (apart from custom) in the manner provided by sections 20 and 21. Those sections with Section 19 will be found at the beginning of Chapter V under the Heading 'occupancy raiyats' and the sub-heading 'general.'
48. Now, reverting to the classification of raiyats in Section 4, no doubt, when a non-occupancy raiyat acquires a right of occupancy, as he undoubtedly may, he ceases to be a non-occupancy raiyat. That must be so by force of the terminology. But inasmuch as it is conceded that an occupancy raiyat may (without losing his right of occupancy) become a raiyat at a fixed rate, there appears to be no reason why a raiyat at a fixed rate, if he has not already a right of occupancy, should not be able to acquire such a right in addition to his other rights. I am not convinced that the status of a raiyat at a fixed rate cannot be satisfactorily or logically combind with that of an occupancy raiyat. The higher status would supersede so much of the lower as might be inconsistent with it and either status might be used as a shield so far as it extended. For instance as regards eviction, an attempt to evict a raiyat possessing the combind rights, on the ground that he had used the land so as to make it unfit for the purposes of the tenancy, would be met by the plea of 'raiyat at a fixed late.' The same answer would be given to a claim by the landlord to enhance the rent. No objection can be taken to the transfer of the holding of a raiyat at a fixed rate, on the ground that the consent of the landlord has not been obtained, though the question might arise whether the transferee has obtained, in virtue of the transfer, a right of occupancy. It may well be that under the Tenancy Act a raiyat at a fixed rite is, for all purposes other than a sale of the tenure under which he holds for arrears of rent, sufficiently protected whether he has a right of occupancy or not. But I fail to see why merely on account of the other rights which he possesses he should be denied the protection which a right of occupancy would give him in the event of such a sale.
49. If there is nothing inherently contradictory or impossible in the combination of the two statutes, then, if we turn to sections 20 and 21, we and it provided, in Section 20, that every person who for a period of twelve years has continuously held as a raiyat land situate in any village shall be deemed to have become, on the expiration of that period, a settled raiyat of that village,' and, in Section 21, that 'every person who is a settled raiyat of a village shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.'
50. The language is certainly wide enough to cover the case of a raiyat at a fixed rate. No doubt, these stations occur in a Chapter headed 'occupancy raiyats,' but they deal with the acquisition of rights of occupancy. The expression 'land held as a raiyat' in Section 20 must include land held as a non-occupancy raiyat. Why should it not include land held as a raiyat at a fixed rate? It is nothing to the purpose to say that the word 'raiyat' in Section 85 does not include a raiyat at a fixed rate. The Act has to be construed as a whole and in the case of a raiyat at a fixed rate, Section 85 has to be read with Section 18 and construed accordingly. Apart from the rights of transfer conferred or recognized by Section 18, the word 'raiyat' in Section 85 would include a raivat at a fixed rate.
51. Then if a raiyat at a fixed rate may and does acquire a right of occupancy under sections 20 and 21, he will become for certain purposes at any rate an occupancy raiyat and will be entitled to protection as much under Section 160 of the Act.
52. Otherwise a raiyat at a fixed rate would be entitled to no protection at all under section, 160, unless he was entitled to a right of occupancy acquired before the Tenancy Act came into force. He does not hold an under tenure and cannot claim the protection given to under-tenures. As Banerjee, J., said in Nilmani Maitra v. Mathura Nath 5 C.L.J. 413 Section 18 does not make all the incidents of a permanent tenure applicable to a raiyat's holding at fixed rates, but makes only the provisions with respect to transfer and succession applicable.'
53. In any case, the protection which Section 160 gives a raiyat at a fixed rate is a qualified protection. Assuming that his status does not as such entitle him to a right of occupancy, then, unless he, otherwise has, or until he has acquired a right of occupancy, he is not protested at all. If he has a right of occupancy, that right is protested by Clause (d), while his right to hold at a fixed rate, if protested at all, is only protected to the extent indicated in Clause (f).
54. Clause (f) does not appear to have been considered in any previous case. The question was put in the course of the argument, whether the clause has any meaning unless it refers to the rent of a raiyat at a fixed rate who is also an occupancy raiyat. No satisfactory reply was received. It was suggested for the respondent landlord that the words referred to an ordinary occupancy raiyat who has acquired the right to hold at a, fixed rate, But, as already stated, if an occupancy raiyat san acquire the status of a raiyat at a fixed rate and keep his right of occupancy, there can be no reason why a raiyat at a fixed rate should not acquire a right of occupancy, and, if so, it would, seem to be an unduly narrow construction to say that the clause only applies where the right to hold at the rent was conferred on a person who was at the time an occupancy raiyat and has no application where the raiyat at a fixed rule subsequently acquires a right of occupancy.
55. It was suggested also that an occupancy raiyat who acquires the right to hold at a fixed rate occupies a position midway between that of an occupancy raiyat and that of a raiyat at a fixed rate. But if that is not the previous suggestion in another form, I san find no justification for it or for saying that the classification in Section 4 is not a complete classification. An occupancy raiyat who acquires the right to hold at a rent or rate of rent fixed in perpetuity is a raiyat at a fixed rate.
56. In the absence of all previous discussion on the topic, I am not prepared to say that Clause (f) can only refer to a rent whish has been permanently fixed. It has occurred to me that inasmuch as the interest of an occupancy raiyat, so far as it is not protested, is an incumbrance and apart from Clause (f) only the right of occupancy is protested, the words would cover the case of an ordinary occupancy raiyat, holding at a rent which, apart from the sale for arrears, could not have been altered for fifteen years from the date on whish it was fixed see sections 29 (c), 37 and 40-A.]. It is also conceivable that an occupancy raiyat might by agreement have the right to hold for a limited period at a stated rent.
57. However that may be, if a raiyat at a fixed rate may and does acquire a right of occupancy and become for some purposes an occupancy raiyat, the words, whatever other application they may have, seem capable of being understood as protesting his rent, provided it was a fair and reasonable rent at the time the right to hold at that rent was conferred.
58. The question of rent, however, does not arise in the present case, in whish the raiyat is the plaintiff in an action sounding in tort and I refrain, therefore, from, expressing a final opinion on the meaning of Clause (f). I will only add that in the view of its meaning whish I have indicated as a possible view, Clause (f) would be the sounterpart of such a saving clause as that contained in Section 11 of the Patni Taluks Regulation (Regulation VIII of 1819) and in Section 13 of the Bengal Rent Recovery (Under-Tenures) Act of 1865 (Bengal Act VIII of 1865), Section 16 lays down that the purchaser of an under-tenure sold under this Act shall acquire it free from all incumbrances' subject, inter alia, to the proviso (whish follows the third clause of Section 11 of the Regulation) 'that nothing herein contained shall be held to entitle the purchaser to eject khudkasht raiyati, or resident and hereditary cultivators nor to cancel bona fide engagements made with such class of raiyati or cultivators aforesaid by the late incumbent of the under-tenure or his representatives except it be, proved in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demandable at the time such engagements were contracted by his predecessor.'
59. In the old days the khudkasht raiyat, or resident cultivator, holding at the customary Pargana rate, was distinguished from the paikasht raiyat, or nonresident cultivator, who was a tenant at will or tenant from year to year. The distinction was largely obliterated by the Bengal Rent Act (Act X of 1859), which introduced the new division of occupancy and non-occupancy raiyats and enabled the paikasht raiyat to acquire the privileges or many of the privileges of the khudkasht raiyat. The khudkatht raiyat, however, still survives in the enactments to which I have just referred and no doubt at the pretend day every occupancy raiyat would be regarded as a khudkasht raiyat of Sheikh Mahomud Assanollah Chowdhury v. Shamshir Ali 4 C.L.R. 165).
60. The Bengal Tenancy Act merely develops the policy of Act X of 1859, and tin question occurs whether there is anything in the history of the subject to suggest that a raiyat at a fixed rate should be disabled from acquiring the right of occupancy.
61. It is clear from sections 3 to 6 or Act X that the Act regarded raiyats who had held their land at a rent unchanged from the time of the Permanent Settlement as occupancy raiyats. Under Section 3, 'Raiyats who...hold lands at fixed rate of rent which have not been changed from the time of the Permanent Settlement' were to receive pattas at those rates. Section 4 was a provision corresponding to Clause (2) of Section 50 of the Tenancy Act. Under Section 5, 'raiyats having rights of occupancy but not holding at fixed rates, as described in the two preceding sections,' were to receive pattas at fair and equitable rates, Section 6 provided: 'Every raiyat who has cultivated or held land for a period of twelve years has a right of occupancy in the land so cultivated or held by him...so long as he pays the rent payable on account of the same,' That includes raiyats of the class mentioned in Section 3.
62. It was then found that in improving the condition of the paikasht raiyat some injustice had been done to the khudkasht raiyat. Before Act X the latter would have had what I will call a permanent right of occupation in respect of all land held by him in his village, irrespective of the period during which lie had held any particular parcel, As Section 6 was worded, the right of occupancy could only be acquired in land which had been actually occupied for the period of twelve years Sarat Chndra Roy Chowdhry v. Asiman Bibi 31 C. 725 at pp. 780, 731 : 8 C.W.N. 601.
63. This grievance was remedied by sections 20 and 21 of the Tenancy Act, under which the raiyat has a right of occupancy in all lands in the village of which he is a settled raiyat and he is a settled raiyat of the village if for a period of twelve years he has continuously held as a raiyat land situate therein.
64. Now the Tenancy Act does in Section 50, Clause (1), recognize that where a raiyat and his predecessor in interest have held at rent or a rate of rent which has not been changed from the time of the Permanent Settlement' the rent cannot be increased except on the ground of an alteration in the area of the tenure or holding. That corresponds to Section 3 of Act X, while Clause (2) of Section 50 corresponds, as I have said, to Section 4 of Act X. A raiyat who proves that be holds at a rent unchanged since 1793 is, under the Tenancy Act as under Act X, a raiyat holding at a fixed rate see Dulhin Golab Koer v. Balla Kurmi 25 C. 744 : 2 C.W.N. 580 : 13 Ind. Dec. (N.S.) 486 (F.B.). But he is not specially protected under Section 160 of the former Act. If the correct view be that a raiyat at a fixed rate cannot acquire a right of occupancy under the Tenancy Act, the raiyat holding at a rent unchanged since 173 is only protected because his right of occupancy was acquired under Act X of 1859 and is preserved by Section 19 of the Tenancy Act, Section 19 is a section of the kind which Legislatures insert out of caution to preserve existing rights. I can see no reason for saying that though a raiyat holding at a rent unchanged since 1793 had a right of occupancy under Act X, nevertheless under the Tenancy Act, apart from Section 19, he has no right of occupancy.
65. It is true that Act X put on the same footing all raiyats who did not hold their land at a rent unchanged from the time of the Permanent Settlement, treating them all (whether holding at a fixed rent or not) as occupancy raiyats after twelve years of possession, liable to pay a fair and equitable rent. Dinobundhoo Dey v. Ram Dhone Roy 9 W.R. 522. But it must be remembered that ever since Regulation V of 1812, Zamindars in permanently settled districts have been considered competent to grant leases to raiyats at a fixed rent for any term or in perpetuity, and that since then such leases have been binding upon the grantors, their ever and assigns, though not upon a purchaser under a sale fop arrears of revenue: Isshur Ghose v. James Hills W.R.F.B. 148 at p. 153. Presumably while such a lease was in force, the fair aid equitable rent would have been the rent payable under the lease. The fast therefore, tint under the Tenancy Act raiyats who hold at fixed rates but not under tenancies dating from 1793, are included in the definition of raiyatt holding at fixed rates, seems to furnish no reason why such raiyatt should be excluded from the benefit of sections 20 and 21. Here again there are raiyats tenancies created after 1793 the holders of whish are entitled to rights of occupancy acquired under Ant X and preserved by Section 19 of the Tenancy Act: Lakhi Charan Saha v. Hamid Ali 44 Ind. Cas. 543 : 27 C.L.J. 284.
66. Suppose this case, a raiyat holds land in a village as a settled raiyat with the right of occupancy. He surrenders the land and takes other land in exchange as a raiyat at a fixed rate. Is he to lose the right of occupancy whish he would otherwise have in the land taken in exchange?
67. Having refereed to the repealed Act X of 1859, I should perhaps explain that I quite appreciate that the right of occupancy is a creature of Statute and that at the present time the solution of any question as regards the scope or incidents of that right must be sought within the four corners of the Bengal Tenancy Act. But where that Act speaks with an uncertain or ambiguous voice, I apprehend that resort may be had to the previous history of the subject for light and guidance in construing its provisions.
68. If Act X of 1859 has been repealed, Act XI of that year (the Bengal Land Revenue Sales Act) is still in force and questions have arisen in regard to the meaning of the proviso to Section 37. One at least of these questions is germane to the present discussion and some reference to the section must, therefore, be made. Under Section 37 a purchaser of an estate sold for arrears of land revenue acquires it free from all incumbrances with certain exceptions and subject to the proviso whish protests from ejectment 'any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules tinder the laws in force.' The proviso goes on to say that the purchaser is not 'to enhance the rent of any such raiyat otherwise than in the manner prescribed by such raiyat or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do.'
69. The language of the proviso seems to reflect the provisions contained in sections 3 to 6 of Act X of 1859. All raiyats haying a right of occupancy under that Act were protested from ejectment. Where the rent of a holding had not been changed since 1798, it was protested from enhancement, but the rent of occupancy raiyats including occupancy raiyats at a fixed rate holding under engagements made since the time of settlement' became liable to enhancement under the laws in force, irrespective of those engagements, That result was also consistent with the state of things brought about by Regulation V of 1812 reforced to above.
70. No difficulty occurred till Act X was repealed and tae Bengal Tenancy Act was passed. The proviso had then to be sons trued with reference to the provisions of the latter Act.
71. It was held in Sarat Chandra's case 31 C. 725 at pp. 780, 731 : 8 C.W.N. 601, to which I have already referred, that the right of occupancy mentioned in the proviso mast now be equated with the right of occupancy defined in the Tenancy Act. (See per Mitra, J., at page 731 and per Geidt, J., at page 736). There are not two rights of occupancy, one created by Act X and a separate and different right created by the Tenancy Act. The Tenancy Act enlarges the mode of acquisition, but it is in part a consolidating Act and the right, when acquired, is identical with the right of occupancy created by Act X, Mitra and Geidt, JJ., therefore, held that the ordinary occupancy raiyat was, entitled under the proviso to protection for all the lands held by him as a settled raiyat, The decision is an interpretation with reference to the Tenancy Act of the words any raiyat having a right of occupancy at a rent assessable according to fixed rules under the laws in force' and is now assented law.
72. The more difficult question remained as to the meaning with reference to the Tenancy Act of the words 'any raiyat having a right of occupancy at a fixed rate.'
73. As I said at the outset, personally I am tempted to hold that every raiyat, at a fixed rate has a right of occupancy as an incident of his status, however the status he acquired. Put if that is inadmissible, the reasonable conclusion seems to me to be this, that the words now include every raiyat at a fixed rate who, apart from his status as such, possesses or has acquired a right of occupancy. That would include every settled raiyat of a village who, in respect of the holding in connection with which the question arises, is a raiyat at a fixed rate. Such a raiyat would be protected from ejectment, but night be liable under the laws in force to enhancement of rent on the ground that he holds 'under an engagement made since the time of settlement.'
74. The concession to which I referred earlier in this judgment--that an occupancy raiyat who becomes a raiyat at a fixed rate has a right of occupancy protected by Clause (d) of Section 160 of the Tenancy Act--was probably made in view of the terms of the proviso to Section 37, The argument is that an ordinary occupancy raiyat who acquires the status of a raiyat at a fixed rate does not lose his right of occupancy because there is no merger, and that his right of occupancy is, therefore, protected by both Clause (d) of Section 160 and by the proviso to Section 37. In my opinion, however, for the reason already stated, it is impossible to stop at any such half way house.
75. The question whether a raiyat at a fixed rate, whose tenancy began after the Bengal Tenancy Act came into force and has lasted for twelve years or more, has or has not a right of occupancy which is protected by the proviso to Section 37, is in substance much the same as the question which arises in the present case, whether such a raiyat has a right of occupancy protested by Clause (d) of Section 160. Both questions depend on the further question whether such raiyat can or cannot become a settled raiyat of the village within the meaning of sections 20 and 21 of the Tenancy Act.
76. It will be apparent from what I have said that I am disposed to answer this last question in the affirmative. The cases have already been referred to by the learned Chief Justice and, in my opinion, there is no authority which precludes me from giving effect to the view which I have formed.
77. The principal difficulty is caused by the observations of Mookerjee, J., in Bhutnath Naskar v. Monmotha Nath Mitra 2 Ind. Cas. 675 : 13 C.W.N. 1025 : 11 C.L.J. 98. Those observations are entitled to great respect and naturally wake me much more doubtful as to the correctness of my own view than I should otherwise have been. The case, however, was actually decided on another ground and for the present purpose, therefore, is not conclusive. Second Appeal No, 847 of 1913, decided on 26th May 1915, Akhil Chandra Sen v. Tripura Charan Chowdhury 29 Ind. Cas. 563, turned on the proviso to Section 37 of Act XI of 1859 and the case does not appear to have been presented in argument to the learned Judges on the lines on which the present case has been presented to us.
78. In the result I agree that the appeal should be allowed.