1. This appeal has been heard at very great length; but I think the appellant has established his argument. The facts are that under the landlord there was a raiyat of the name of Fakir Mahamed. Fakir Mahamed mortgaged the property to one Ishan Poddar, who got possession. Ishan inducted the present defendants on the land. The landlord brought a suit for rent against the heirs of Fakir Mahamed and he bought' up the holding at a sale for arrears of rent. The first and perhaps the main question in this appeal is, what is the effect of such purchase? Did it, as has been contended by the respondent, effect a complete merger of the holding and of the occupanncy right in the landlord's right or did it, as the appellant contends, keep alive the occupancy holding though merging the occupancy right? This question has been discussed in the case of Akhil Chandra Biswas v. Hasan Ali Sadagar 20 Ind. Cas. 698 : 19 C.W.N. 246 : 18 C.L.J. 262 where, a distinction is drawn between an occupancy holding and an occupancy right. I should state here that this case has been decided on the old law as it existed prior to 1907. Following the principle enunciated in the decision to which I have just referred, I would hold that the occupancy holding still continued to exist even after the purchase by the landlord. The landlord then sold to one Magan Ali the permament raiyati right. Magan Ali also took a lease from the landlord and the plaintiff has bought from Magan Ali and now desires to eject the defendant who had been inducted into possession, as stated.
2. The first Court held that he was entitled to a decree. The decision was reversed on appeal. For the reasons I have stated the landlord was able to transfer the holding to Magan Ali, through whom it came to the plaintiff. The defendant continued to be what he was, an under-raiyat, and it has been found that he has been duly served with notice. The learned Judge has referred at the conclusion of his judgment to Section 167. In my opinion this does not stand in the way. A further question was sought to be argued, and that is this, that in the suit to which Magan Ali was a party it was held that he could not get possession except by proceeding under Section 167. This question is not a point which has bee a either raised or dealt with in the judgment under appeal and, therefore, cannot be entertained now. The defendants, having been duly served with notice to quit, must be ejected.
3. I, therefore, would allow this appeal, set aside the judgment and decree of the lower Appellate Court and restore those of the first Court with costs of this Court and of the lower Appellate Court.
4. Mullick, J.--I agree.