Renupada Mukherjee, J.
1. This appeal raises an interesting question of law, namely, whether an underraiyat who holds his land under a lease for a limited term and against whom a suit for ejectment brought by his landlord on the expiry of the term has been dismissed on the ground of special limitation, as provided in Article 1(a) of Schedule III of the Bengal Tenancy Act, continues to possess his land as a tenant or as a trespasser without any right.
2. The allegation of the plaintiff in the Trial Court was briefly the following:
3. Defendant No. 1 of the Trial Court, Aghore Chandra Jeley, took an under-raiyati lease from one Akshoy Kumar Ghose, predecessor-in-interest of the plaintiff-appellant for a term of nine years from 1342 to 1350 B.S. at an annual rent of Rs. 18/-. A kabuliayat was executed on 21st Pous, 1342 B. S. by Aghore's son Panchanon Jeley who is defendant No. 2 in the Trial Court. The case of the plaintiff was that the two defendants did not give up possession of their land on the expiry of the term of lease. So the plaintiff who is the present landlord of the under-raiyati holding in suit claimed damages for use and occupation of the land for the years 1351 to 1353 B. S. The total amount of claim was laid at Rs. 237/-. Alternatively the plaintiff claimed rent from the defendants should his claim for damages fail.
4. The suit was contested by defendant No. 1 whose defence was that he was not liable to pay any damages inasmuch as he was in possession of the disputed holding for more than twenty years as a raiyat holding at a fixed rent and had also acquired an occupancy right therein. The defendant further contended that the plaintiff had previously brought a suit for ejectment against the present defendants which had failed and so he was not entitled to get any damages after the dismissal of that suit.
5. The above defence of the contesting defendant was negatived by the Trial Court which held that the plaintiff was entitled to recover damages from the defendants for their use and occupation of the disputed land even after the dismissal of the previous suit. The quantum of damages allowed by the Trial Court was Rs. 115/2as.
6. An appeal was preferred by defendant No. 1 from the above judgment and decree of the Trial Court. The Lower Appellate Court took the view that after the dismissal of the previous suit for ejectment brought by the plaintiff landlord he was not entitled to claim any damages from the defendants for their use and occupation of the land, and he was only entitled to get rent from them which had been stipulated in the kabuliayat executed by defendant No. 2. Accordingly, that Court modified the judgment and decree of the Trial Court and passed a decree for arrears of rent against the defendants. The plaintiff has preferred this second appeal from the above judgment and decree of the Lower Appellate Court. Respondent No. 1 Aghore Chandra Jelay died during the pendency of the appeal in this Court and his heirs were substituted in his place.
7. The real question for determination in this appeal is what is the implication or effect of the dismissal of the previous ejectment suit brought by the appellant against the respondents.
8. Mr. Lala Hemanta Kumar appearing on behalf of the plaintiff appellant contended that the only effect of the dismissal of the suit for ejectment brought by the appellant was that on account of the bar of special limitation prescribed in Article 1(a) of Schedule III of the Bengal Tenancy Act the appellant was not entitled to eject the respondents. He submitted that the dismissal of that suit could not have created any new tenancy in favour of the respondents, because the term of the original lease had come to an end by efflux of time and the right of getting khas possession of the disputed land which the landlord had lost by reason of the dismissal of the ejectment suit, did not create any new right in favour of the respondents. This contention of Mr. Lala Hemanta Kumar, though somewhat plausible on the face of it, is really without any substance.
9. Section 48C of the Bengal Tenancy Act lays down that subject to the provisions of that Act, an underraiyat shall be liable to ejectment on one or more of the grounds specified in Section 48C, and not otherwise. One such ground contained in Clause (c) is that the term of the Tease has expired where the tenant holds under a written lease. This ground for eviction is again circumscribed by some other conditions with which we are not concerned in the present case. What is material for our purpose is that on the expiry of the term of the lease the landlord did bring a suit for ejectment of the respondents, but the suit was dismissed on the ground of special limitation prescribed in Article l(a) of Schedule III of the Bengal Tenancy Act. Whatever may be the ground for dismissal of the suit, the fact remains that the respondents underraiyats are continuing to occupy their land without any break or interruption, and the appellant landlord is no longer entitled to eject them. The respondents can remain on the land either as trespassers or as tenants. There cannot be any via media between these two positions. Obviously they cannot be regarded as trespassers, because to hold that they are continuing to occupy the land as trespassers without any right would mean that the landlord can drive them out from the land which he cannot certainly do by reason of the dismissal of the previous ejectment suit. The only logical consequence which would flow from the dismissal of that suit is that the old under-raiyati tenancy has not been determined, although the term of the lease did expire as a matter of fact. The dismissal of the landlord's suit would operate in the same way as his consent for a fresh tenancy on the expiry of the term of the lease would have done, otherwise the dismissal of the ejectment suit of the appellant would be perfectly meaningless. In fact, on a reference to the judgment passed in the ejectment suit we find that in the concluding portion of the judgment the Court held that the present respondents 'should be held to be tenants holding over in respect of the suit land'.
10. Upon that finding that Court ruled out the liability of the defendants for mesne profits. Apart from the observations which we have already made, this finding made in the previous ejectment suit which does not appear to have been challenged in appeal, is binding between the parties, and it must be held that the present respondent's are continuing to occupy their land under the appellant as tenants. That being the case, the Lower Appellate Court has acted rightly in disallowing the claim of the appellant for damages and in decreeing their alternative claim for arrears of rent.
11. From the foregoing observations it would appear that the appeal must fail. This appeal is accordingly dismissed with costs to the respondents.
12. I agree.