1. In the suit out of which this appeal has arisen the plaintiff sued to eject the defendant on the ground that he was an under-raiyat and that he had served upon him notice to quit.
2. The First Court decreed the suit.
3. The defence of the defendant was that he was not an under-raiyat but a raiyat with a right of occupancy, the plaintiff being a tenure-holder. He also appears to have contended in his written statement that the holding in question was not an agricultural holding. The Trial Court decreed the plaintiff's suit holding that the plaintiff was an occupancy raiyat and the defendant an under-raiyat. On appeal the learned Subordinate Judge held that the land in question was governed not by the provisions of the Bengal Tenancy Act but by the provisions of the Transfer of Property Act and that the kabuliyat on which the defendant relied granted a permanent right. He further held that even if the land was not governed by the provisions of the Transfer of Property Act but by those of the Bengal Tenancy Act, the defendant was raiyat and so was not liable to be evicted. He held that if the case was governed by the Bengal Tenancy Act the plaintiff on his own showing was a raiyat at a fixed rate of rent and, therefore, he was competent to grant a permanent lease of the land in question in view of the decision in the case reported as Amar Chand Roy v. Prasanna Dasi 61 Ind Cas. 529 : 25 C.W.N. 9.
4. On appeal the learned Advocate has contended that having regard to the defendant's own plea his case was that he was an occupancy raiyat and, therefore, he could not be allowed on appeal to make out a case that this case was one governed by the Transfer of Property Act. With regard to this contention, I think, it is clear from the written statement of the defendant and also from the judgment of the Trial Court that it was a part of the defendant's case that he did not hold the land in question as agricultural land. This, I think, is clear from para. 5 of the written statement and also from the discussion of the Trial Court in its judgment. I do not, therefore, think that the case that the suit was governed by the Transfer of Property Act was made for the first time in appeal.
5. The next point taken by the learned Advocate is that the learned Judge is wrong in holding that if the Bengal Tenancy Act applied, the defendant was protected from ejectment.
6. On the findings of fact of the lower Appellate Court I think this contention is not tenable. The lower Appellate Court has found that if the case is not governed by the Transfer of Property Act, then the defendant has the status of a raiyat because he holds other lands in the village as a settled raiyat and in view of the decision in the case of Krishna Kanta Ghose v. Jadu Kasya 28 Ind. Cas. 839 : 19 C.W.N. 914 : 21 C.L.J.. I am of opinion that although with regard to the homestead land the lessor was a raiyat, the lessee, if he held other lands as a settled raiyat in the village would hold this homestead land as a raiyat and would, therefore, be protected from ejectment.
7. There is a third point too on which the plaintiff's case fails. The lower Appellate Court has found that the plaintiff on his own showing is a raiyat at a fixed rate of rent and, therefore, he was competent to grant a permanent lease of the lands in suit. On all these grounds I think if is clear that the plaintiff's suit must fail.
8. The result is that this appeal is dismissed with costs.