1. Section 45 of the Bengal Tenancy Act runs as follows: A suit for ejectment on the ground of the expiration of the term of a lease shall not be instituted against a non-occupancy raiyat unless notice to quit has been served on the raiyat not less than six months before the expiration of the term and shall not be instituted after six months from the expiration of the term.
2. The only point which arises in this second appeal is whether these provisions apply to the case of a tenant of an undivided share of a holding, the tenant being admitted not to have occupancy rights.
3. For the appellants, it is submitted that this question should be answered in the negative and reliance is placed on the case of Hurry Churn Bose v. Raja Runjit Singh 1 C.W.W.N. 521 on certain cases following that case namely Baidya Nath Be Sarkar v. Sheikh Jhin 2 C.W.N. 44 : 25 C. 917; Haribole Brohmo v. Tasimuddin Mondul 2 C.W.N. 680 and Ahadulla Sheikh v. Gagan Mollah 2 C.L.J. 10.
4. Reference to these cases will show that they all turn on the meaning of the word holding.' In Hurry Churn Bos's case 1 C.W.W.N. 521, it was held that the term holding 'as used in Section 85 of the Bengal Tenancy Act did not include an undivided share in parcels of land. The two cases reported in the 2nd Volume of the Calcutta Weekly Notes refer to the term as used in Section 30 of the Bengal Tenancy Act and the case in 2 C. L. J. refers to Section 167 of the Act. As I understand the argument for the appellant, it is urged on the strength of the language employed by Bannerjee, J. in Hurry Churn Bose v. Raja Uunjit Singh 1 C.W.W.N. 521 of the report that the term raiyat by its definition means the tenant of a holding. The words used by Banerjee, J., are as follows: 'A raiyiti holding which from the very definition of a raiyat in Section 5, Sub-section 2, means land-occupied by a raiyat for the purpose of cultivation can be ordinarily held only in its entirety and the cultivation of an undivided fractional share of a parcel of land will be ordinarily meaningless.'
5. I do not think, however, that it follows from the interpretation which has been put upon the term 'holding' that a tenant with an undivided share in a holding cannot be a raiyat. The word ' tenant' is denned in Clause (3) of Section 3 of the Act as follows: Tenant' means a person who holds land under another person and is, but for a special contract would be, liable to pay rent for that land to that person.' Then Section 4 of the Act lays down that there shall be for the purposes of this Act, the following classes of tenants, namely (1) tenure-holders, including under tenure-holders, (2) raiyats and (3) under-raiyats and further classifies raiyat as (a) raiyat holding at fixed rates (b)) occupancy raiyats (c) non-occupancy raiyats.
6. Regard being had to these sections of the Act, I am unable to accept the contention urged for the appellant or to see how it can be said with any show of reason that the true non-occupancy raiyat' used in Section 45 of the Bengal Tenancy Act, cannot include a tenant, without occupancy rights in possession of an undivided share of a holding.
7. This, as I have said, is the only question which arises and I agree in the view which has been taken in regard to it in the Court of Appeal below.
8. I may add that I asked the learned Vakil for the appellant how he would treat the defendants and he admitted that he would call them tenants on the land.' Apparently in his view they would be tenants outside the classification of the Act.
9. This appeal is dismissed with costs. The tenants-respondents are entitled to their full costs the defendant No. 5 (respondent No. 5) will receive half his costs.