S.A. No. 2481 of 1908
1. The substantial question in controversy between the parties to this appeal relates to the status of the defendent-appellant. The plaintiffs-respondents allege that the defendant is an under-raipat and seek to eject him after service of notice to quit in accordance with the provisions of Section 49 of the Bengal Tenancy Act The appellant contends that his status is higher than that of an under-raiyat, arid he is consequently not liable to be ejected.
2. It is not disputed that the land in the occupation of the defendant is included in a raiyali holding. The roiynt had executed a mortgage in favour of one Gajadhar Prosad. He had also defaulted to pay rent to his superior landlord, Dawar Hossain, who was the ticcaolar. The result was that, Dawar Hossain sued him for rent, obtained a decree and purchased the holding in execution thereof. Subsequently, the mortgagee sued to enforce his security and joined the purchaser at the sale for arrears of rent as a defendant. The latter unsuccessfully contended that the mortgage had been extinguished by the rent-sale. The matter was then settled between the parties and as two-thirds of the mortgage-debt was satisfied a decree was made by consent for realisation of the remainder. The position, therefore, was that the mortgagee became entitled to sell one-third of the land of the holding; and it is asserted on behalf of the defendant-appellant, but the statement is disputed on behalf of the plaintiffs-respondents, that it was agreed that this sale should take place subject to the prior rent-charge. The point, however, is immaterial for the purpose of the decision of the question raised before Rs. The mortgagee enforced his decree and purchased the property He subsequently transferred the property purchased of which he lad obtained possession after partition. The plaintiffs allege that the defendant was placed in occupation of the land by the mortgagee-purchaser, and is consequently an under-raiyat liable to be ejected. The defendant contends that he was placed in occupation of the land for the first time by the purchaser at the sale for arrears of rent and, therefore, he occupied the status of a raiyat. In our opinion, whichever view may be adopted, the defendant cannot successfully claim to occupy a higher position than that of an under-raiyat. If he was inducted into the land by the purchaser at the mortgage sale, he was obviously an under-raiyat, because the holding which had been mortgaged was an occupancy-holding and the purchaser thereof consequently acquired the status of a non-occupancy -raiyat. A sub-tenant of such a purchaser cannot, obviously, claim a higher status than that if an under raiyt. If, on the other hand, it is assumed that the defendant was first inducted into the land by the purchaser at the sale for arrears of rent his position is no way improved, No doubt, Sub-section (3) of Section 22 of the Bengal Tenancy Act provides that a person holding land as an ijatdar, or farmer of rents, shall not, while s) holding, acquire a right of occupancy in any land comprised in his ijara, or farm. The scope of the Clause might at first--sight seem ambiguous, and, as a matter of fact, in the case of Ramrup Mahto v. Manners 4 C.L.J. 209 it was ruled that the term 'acquire' did not include a case of purchase. The Lagislature, however, subsequently intervened, and to remove all possible doubt, amended the sub-section by the introduction of the words by purchase or otherwise' after the term 'acquire' Raghubar Mahto v. Manners 13 C.L.J. 568 : 11 Ind. Cas. 389. Assume, therefore, for a moment that a person holding land as an ijardar, is not entitled while so holding to acquire by purchase a right of occupancy in any land comprised in his ijnra. The result is that if an ijardar purchases an occupancy-holding he acquires it as a non-occupancy-holding. In the case before us, Dawar Hossain, who was an ijardar when he purchased the holding at the sale in execution of the decree for rent obtained by him, could not claim to have acquired an occupancy-holding He must be taken to have petlled the land with the defendant in his character as purchaser and not in his character as ijardar His character as purchaser conferred upon him the status of a ruiyat and consequently the defendant cannot in this view claim any status higher than that of an under-raiyat From whatever point of view, therefore, the status of the defendant may be examined, he must be deemed an under-raiyat. He is, therefore, liable to be ejected after his tenancy has been terminated by a notice to quit under Section 49 of Bengal Tenancy Act. A copy of the counter-foil of the notice has been produced before us and it cannot, be disputed that the notice was in strict compliance with the provisions of Section 49. The conclusion follows that the tenancy of the defendant has been terminated and he is not entitled to remain in occupation of the holding. The decree of the Subordinate Judge must, therefore, be affirmed and this appeal dismissed with costs.
3. This judgment will govern the other Appeals Nos. 2602 to 2611 of 1908. Bat, as the respondents have not entered appearance in these appeals, they will be dismissed without costs.