Nasim Ali, J.
1. The appellants are the plaintiffs in a suit for ejectment under Section 48-C, Clause (a), Ben. Ten. Act as also for recovery of the price of Bhag produce for the years 1332 to 1335 B.S. with damages thereon. The Courts below have decreed the plaintiffs' claim for rent for the year 1335 B.S. at Rs. 40 per annum with damages thereon at 25 per cent. They agreed in dismissing the plaintiffs' claim for ejectment. Hence the present appeal by the plaintiffs. The only point urged in support of the appeal is that in view of the terms of the kabuliyat the defendants are not entitled to get the benefit of the proviso to Section 48-C, Clause (a). Assuming that this contention is correct still the plaintiff cannot succeed in the present appeal. The facts in this case are not disputed. The defendant held the under-raiyati on the basis of a registered kabuliyat dated 1306 B.S. From the terms of the kabuliyat it is clear that the tenants have got the option of paying their rent either in money or in kind. The Courts below on a construction of the kabuliyat have come to the conclusion that the under-raiyats are protected by the proviso to Section 48-C, Clause (a), Ben. Ten. Act and have given the benefit of Section 66 (2) to them. Now Section 48-C Clause (a), is in these terms:
An under-raiyat shall, subject to the provisions of this Act be liable to ejectment on one or more of the following grounds, and not otherwise, namely (a) on the ground that he has failed to pay an arrear of rent: Provided that, if the under-raiyat is one whose rent is payable in terms of cash and not of produce and he pays through the Court all arrears up-to-date together with such interest and damages as the Court may award, he shall not be liable to ejectment on account of such arrears.
2. This section therefore is controlled by the other provisions of the Act. Section 66 of the Act runs as follows:
When an arrear of rent remains due from a tenant not being a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy raiyat, at the end of the agricultural year (Bengali year), the landlord may, whether he has obtained a decree for the recovery of the arrears or not and whether he is entitled by the terms of any contract to eject the tenants for arrears or not, institute a suit to eject the tenant. (2) In a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon and the decree shall not be executed if that amount and the costs of the suit are paid into Court within 30 days from the date of the decree, or when the Court is closed on the 30th day on the day upon which the Court re-opens. (3) The Court may for special reasons extend the period of 30 days mentioned in this section.
3. The language in Section 66 is very wide. The word used there is 'tenant' and it is not disputed in this case that the under-raiyats in the present case are tenants, and that they are not mere Bhagidars or Adhidars or Borgadars. If the proviso to Section 48-C, Clause (a) is not attracted to this case the under-raiyats can claim the benefit under Section 66, Clause (2). The learned Advocate for the appellant did not seriously dispute this position but he argued that Section 66 contemplated cases for ejectment only, and that the present suit being a suit for recovery of arrears of rent as also for ejectment, the provisions of Section 66 could not be attracted to this case. But if this contention be correct, the present suit is not within the purview of Section 48-C also. This argument therefore is of no assistance to the plaintiff. The Courts below were therefore right in giving the under-raiyats the benefit of Section 66. In view of the above conclusions, it is not necessary to express any definite opinion as to whether in view of the terms of the kabuliyat, the under-raiyats in the present case can claim the benefit of the proviso to Section 48-C Clause (a). The proviso speaks of an under-raiyat whose rent is payable in terms of cash and not in terms of produce. It is therefore contended by the learned Advocate for the appellant that where the tenant has got the option to pay the rent either in money or in kind, he cannot claim the benefit of the proviso, in other words the argument is that the proviso contemplates cases where the rent is payable only in cash and not cases where the raiyat has got the option to pay either in cash or in kind. There is some force in this contention. But as the under-raiyats in the present case are entitled to the benefit of the provisions of Section 66, it is not necessary for the purposes of this case to pursue the point any further. In any view of the case the plaintiffs are not entitled to eject the defendants, as it is admitted that the arrears have been all paid up.
4. The appeal therefore fails, but in the circumstances of the case, I make no order as to costs. Leave to appeal under Section 15 of the Letters Patent, has been asked for and is refused.