C.C. Ghose, J.
1. The plaintiff is the purchaser of the property in dispute at a sale under Regn. 8 of 1819. He alleges that after the said sale, there was an extinguishment of all encumbrances and that the defendants who are in possession of the lands described in the plaint herein have no right to possess the same and are trespassers. It is further alleged that the defendants fraudulently had an entry made in the Record of Rights to the effect that they were holding the lands as occupancy raiyats at a jama of Rs, 4 a year. In the circumstances the plaintiff is asking for khas possession of the said lands together with mesne profits. The defendants' contention is that they have occupancy rights in the holding, that the holding has been in existence from before the date of the permanent settlement, that they are khudkast resident and hereditary raiyats of the holding, that the holding was not an encumbrance and that it was not and could not be annulled by reason of the sale under Regn. 8 of 1819, and that therefore the plaintiff was not entitled to khas possession as prayed for by him. The first Court found that the patni tenure was created before the date of the origin of the tenancy in this case, and that the defendants were not resident or hereditary khudkast raiyats but they were paikast raiyats and that though they had acquired occupancy rights, they were not khudkast raiyats within the meaning of Section 11, Regn. 8 of 1819 and that therefore the plaintiff was entitled to get khas possession of the lands in dispute.
2. The lower appellate Court was however of opinion that a raiyat with an occupancy right occupied the same position as a khudkast raiyat and that he had the same protection as khudkast raiyat had when the Putni Regulation of 1819 was enacted, and that the plaintiff being a purchaser at a sale under the said Patni Regulation was not entitled to evict the defendants. The lower appellate Court accordingly held that the plaintiff's suit should be dismissed. On appeal to this Court the learned Judge before whom the appeal came on for hearing was of opinion.,, that the defendants having acquired the status of occupancy raiyats were not liable to eviction. It is against this judgment that the present appeal has been preferred.
3. The question depends upon the ascertainment of the rights which the defendants have in respect of the lands in suit and upon the proper construction of Section 11, Regn. 8 of 1819. The lower appellate Court has adopted the finding of the first Court that the defendants are not khudkast raiyats but that they are occupancy raiyats, and we must therefore proceed on this footing. It is therefore not necessary, strictly speaking, to go at length into the question of the rights of khudkast raiyats; but reference may be made to para. 406 of Sir John Shore's Minute of 18th June 1789 relating to the question of the permanent settlement of lands in Bengal where the rights of khudkast raiyats are discussed and also to the judgment of Trevor, J,, in the great rent case of Thakurani Dassi v. Visweswar Mukherjee 3 WR Act, 10 p 29, where an elaborate account is given. It may be noticed however that it is by no means correct to say that khudkast raiyats had no rights of occupancy; but be that as it may, the defendants have certainly rights of occupancy in the lands comprised in their holding and the question now is whether they can be evicted at the instance of the plaintiff. The plaintiff relies on C1. 3, Section 11, Regn. 8 of 1819 and argues that none but khudkast raiyats are protected from eviction in the event of a sale of the patni tenure under Regn. 8 of 1819. This contention was negatived by B.B. Ghose and Roy, JJ., in a case which was decided by this Court in 1927: Rash Behary Mandal v. Hemanta Kumar Ghose : AIR1928Cal52 The learned Judges observed as follows:
There is ample authority for the proposition that the proviso in Clause 3 does not mean that persons in occupation not coming within the definition of khudkast raiyats are liable to be ejected oven if they have acquired occupancy rights under the Tenancy Law. I have not been able to find any authority with regard to the patni sales, but the cases with reference to Section 16, Act 8, of 1865, where the proviso is in the same terms as the proviso in C1. 3, Section 11, Regn. 8 of 1819 support the proposition. Those cases are Pureeag Singh v. Pratap Narain Singh (1869) 11 WR 253; Nil Madhab v. Shiboo Pal (1870) 13 WR 410; Eman Ali v. Atur Ali (1874) 22 WR 133 and Bama Charan v. Bam, Kanai (1915) 28 IC 374.
4. Of the illustrative eases referred to above, reference may be made to the judgment of Sir Charles Hobhouse in the case in Nil Madhab v. Shiboo Pal (1870) 13 WR 410. There the plaintiff became the purchaser at an auction-sale under Act 8 of 1865 (Bengal Council)of a certain under-tenure. The person who held that under-tenure previous to the plaintiff's purchase created an incumbrance on that tenure in the shape of a mokarari lease in favour of the defendant. The plaintiff sued to recover from the defendant khas possession of the lands covered by the mokarari. The lower appellate Court found that the defendant had been at any rate an possession for more than 12 years of the lands in question and it was therefore held that the plaintiff could not succeed in obtaining khas possession by ejecting the defendant. Hobhouse, J., observed as follows:
The argument of the special appellant is this: he says and says truly enough, that the mokarari lease in question is an incumbrance and he then says that inasmuch as the defendant is the holder of that incumbrance, so if he has the right to get rid of that incumbrance, he has also the right to eject the defendant, the person who is the holder of it. And he contends that the only way in which the defendant can escape from ejectment is by pleading to the proviso 1 in Section 16, Act 8 of 1865 (Bengal Council) and by showing that he is khudkast raiyat or else a resident and hereditary cultivator within the meaning of that proviso 1.
But it seems to us that the proviso in question has nothing whatever to do with, and does not at all concern the party before us. It is quite true that the Judge has found or seems to find that the defendant is not a khudkast raiyat and the Judge has certainly not found that the defendant is a resident and hereditary cultivator, but the Judge has found that the defendant is a raiyat having a right of occupancy within the meaning of Section 6, Act 10 of 1859; and this we think is sufficient to protect the raiyat in this instance. The law, Section 16, is couched in these terms: 'The purchaser of an under-tenure sold under this Act shall acquire it free from all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure his representatives or assigns, unless,' as the law goes on to say, 'the right of making such' assignment is specially provided for or unless the particular tenant against whom any suit may be brought is a tenant coming within the terms of the proviso to which I have above referred. Now, if the suit had been one on the part of the plaintiff to declare that he was free from the incumbrance made by the late holder of the tenure, it is most likely that we should have held that the suit was a good one and that we should have given the relief asked for, because the incumbrance in question was undoubtedly an incumbrance which had accrued by the act of the former holder and which was not protected by any especial right given under especial right given under especial agreement to make such incumbrance, but the defendant in this instance does not rely solely upon the incumbrance, if he indeed relies upon it at all. He says that he cannot be ejected because he has a right of occupancy, a right expressly given to him by the provisions of Act 10 of 1859. The incumbrance to which Section 16, Act 8 of 1865 (Bengal Council) refers, is not the person but the thing. The lease in this instance might possibly be avoided; but it does not follow that the man who holds that lease must necessarily thereby and therefore be ejected. The law does not say so, and on the contrary the provisions of Act 10 of 1859, on which the defendant relies protect a person, who, like defendants has a right of occupancy.
5. In my opinion, the present case is covered by the reasoning of Hobhouse, J., and by the judgment of this Court in the case of Rash Behari Mandal v. Hemanta Kumar Ghose : AIR1928Cal52 . It is said however that the plaintiff's ease is concluded by the authority of Jogeswar Majumdar v. Abad Mohamed Sarcar (1899) 3 CWN 13. But this case as has been pointed out in the case in Rash Behari Mandal v. Hemanta Kumar Ghose : AIR1928Cal52 has been doubted in various other cases. As regards the construction of Section 11, Regn. 8 of 1819, 1 cannot add usefully to what has been said in the case in Rash Behari Mandal v. Hemanta Kumar Ghose : AIR1928Cal52 and I respectfully adopt the same. In my opinion, the plaintiff cannot derive any comfort from the argument that it has not been shewn (1) that the defendants were khudkast raiyats with rights of occupancy and (2) that the tenancy in question was in existence in 1819. This question, in my opinion, does not really arise. Whether the tenancy was in existence in 1819 or not, it is quite clear that rights of occupancy in the sense in which we know them now came into existence with Act 10 of 1859 and that the defendants are certainly at the present moment occupancy raiyats. If the defendants are occupancy raiyats, they are, in my opinion, protected from eviction having regard to the provisions of the Bengal Tenancy Act. I am therefore of opinion that this appeal has no substance and must be dismissed with costs.
6. I agree.