1. In these cases the plaintiff-appellant brought five analogous suits. The allegation was that on the 24th June 1921, he purchased a tenure in an auction-sale and subsequently took possession through Court. The defendants were mokarari raiyats under the tenure-holder and so their tenancies, not being protected interests, were liable to be aunulled and accordingly notices were issued under Section 167, Bengal Tenancy Act, in August 1922. The defendants not having vacated the land, these suits were brought. The first Court dismissed the suits and so has the Additional District Judge on appeal. The finding of fact of the lower appellate Court is that these holdings came into existence many years ago, but not before the Permanent Settlement. They were occupancy holdings and were recognized as such. But at the time of the last record-of-rights they were recorded as holdings of raiyats holding at fixed rents. It is also found that the plaintiff recognized the defendants as raiyats at fixed rents, and that the defendants, though they were originally occupancy raiyats, had acquired the rights of raiyabs at fixed rents by the conduct of the landlord.
2. The only point which is urged before us is the question as to whether the interest of the raiyats at fixed rent is a protected interest under Section 160, Bengal Tenancy Act. Now these rights were at their inception occupancy rights and the right to hold at fixed rents subsequently accrued to them. It is argued for the appellant that this Court should follow the opinion expressed by Mr. Justice Mukerji in the case of Bhut Nath Naskar v. Manmotho Nath Mitra  13 C.W.N. 1025. In that case that learned Judge observed that the Bengal Tenancy Act made a well-defined distinction between a raiyat holding at a fixed rate of rent and an occupancy raiyat : and that in Section 160 reference has been made expressly to a right of occupancy and the right of a non-occupancy raiyat, but that no mention is made of the right of a raiyat at a fixed rate of rent and that the inference, therefore, seems to be reasonable that the intention of the legislature in Section 160 was to protect from ejectment a raiyat who possesses a right of occupancy as also a raiyat who possesses the right of a non-occupancy raiyat and not to protect from ejectment a raiyat holding at a fixed rate of rent. This dictum of Mr. Justice Mukerji, however, was not concurred in by the late learned Chief Justice with whom he sat. This is not, therefore, a ruling by which we are bound and which we shall show has not been followed.
3. The next case is of Abdul Gani Chowdhury v. Makbul Ali  42 Cal. 745. In that case the chief consideration was the proviso (3) to Section 37, Act 11, 1859, which says that nothing in that section should be construed to entitle a purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rate. But it was held in that case that a person who has obtained an occupancy right does not, by obtaining a grant of fixed rate, lose that right and, though that ruling may in one way be distinguished on the ground that it was passed without reference to the wording of Section 160, Bengal Tenancy Act, this statement shows that the mere fact that an occupancy raiyat obtained a grant at a fixed rent shall not make him cease to have the right of occupancy. In the case of Lakhi Charan Saha v. Hamid Ali  27 C.L.J. 284, which also came up under Section 37. Revenue Sale Law, the same view was expressed, and the case of Abdul Gani Chowdhury v. Makbul Ali  42 Cal. 745 was followed.
4. Lastly, we have the case of Sarbeswar Patra v. Bijay Chand Mahtab A.I.R. 1922 Cal. 287 and there it was held that the interest of a raiyat at a fixed rent who had occupied his holding for a continued period of more than 12 years is a protected interest within the meaning of Section 160, Bengal Tenancy Act and cannot be annulled by notice under Section 167 and that the status of a raiyat at fixed rent can be combined with that of an occupancy raiyat. This last decision at any rate is clearly binding on us. The point, however, urged on behalf of the appellant is that either we should follow the dictum of Mr. Justice Mukerji in the case of Bhut Nath Naskar v. Surendra Nath Dutt  13 C.W.N. 1025 or in view of the observation of the late learned Chief Justice in the case of Sarbeswar Patra v. Bijab Chand Mahtab A.I.R. 1922 Cal. 287 that he would rather like to have the matter referred to a Full Bench, we should now refer the matter to a Full Bench.
5. As we have pointed oat the dictum of Mr. Justice Mukerji was not endorsed by the learned Judge sitting with him and so it cannot be binding on us, though it must be treated with great respect against a subsequent decision of two Judges of this Court forming a Division Bench. The result, therefore, is that these raiyats at fixed rent are protected under Section 160, Bengal Tenancy Act, and as such the appeal must be dismissed with costs.
6. I agree with my learned brother in dismissing the appeal. I only desire to add that the defendants this case, who were originally occupancy raiyats, could not lose their status as such, when their rent at a subsequent period became fixed and was rendered not liable to enhancement. I may refer in this connexion to Section 37, Act 11 of 1859, where the interest of an occupancy raiyat at fixed rent as well as of an ordinary occupancy raiyat is protected and is not affected by a sale for arrears of revenue. In my opinion, the interest of a raiyat at a fixed rent, who was originally an occupancy raiyat, is not a smaller interest but a higher interest than that of a raiyat with a right of occupancy and if the legislature intended that a tenant with an inferior status is to be protected by enacting the provisions of Section 160, it follows a fortiori that a tenant with a higher interest is also protected. I entirely agree with the decision of the learned Chief Justice, Sir Lancelot Sanderson, in the case of Sarbeswar Patra v. Bijay Chand Mahtab A.I.R. 1922 Cal. 280.