Ernest Fletcher, J.
1. The defendants in this case appeal against the decision of the learned Additional Judge of Jessore, dated the 30th January 1917, affirming the decision of the Munsif of Jhenidah. The plaintiffs brought the suit for declaration of title to and possession of certain land. The title pleaded in the plaint, according to the English translation of the vernacular document, was that the plaintiffs claimed a subordinate intermediate tenure, and those words are strengthened by the nature of the enjoyment that the plaintiffs alleged they had in the land in suit. What happened was this. The learned Judge in the lower Appellate Court has found that the plaintiffs are not either tenure-holders or under-tenure holders bat are raiyats with rights of occupancy, and in this case the defendants are not entitled to annul the interest of the plaintiffs under the provisions of the Bengal Tenancy Act. Whether that can be supported turns on this : whether the English translation of the allegation that the plaintiffs put forward in their plaint that they were subordinate intermediate tenure-holders is an accurate translation of the original document. It is suggested that the subordinate intermediate tenure-holder only meant, if due regard is had to the vernacular words used, that the plaintiffs were holding under a tenure holder without defining or limiting the nature of the interest of the plaintiffs. The words used in the vernacular do not support that contention. It is quite clear that the plaintiffs came to trial with the allegation that they were tenure holders within the meaning of the Bengal Tenancy Act. If that is sc, the learned Judge was cleirly wrong in finding that the plaintiffs were occupancy-raiyats, contrary to the allegation set up in the plaint on which they asked the Court to adjudicate in their favour. I do not chink that the learned Judge was entitled on the facts to find that the plaintiffs were raiyats with rights of occupancy. The highest that could be held was that the plaintiffs had the interest that was sot up in the plaint, namely that they were under-tenure-holders within the meaning of the Bengal Tenancy Act.
2. Then, one other point arises and that is this: In the view of the learned Judge, it became unnecessary to dispose of the second issue, because in his view the plaintiffs being raiyats with rights of occupancy, the Bengal Tenancy lot did not give the defendants any right to annul such an interest. It is necessary that the service of the notice in accordance with the statutory procedure laid down in the Bengal Tenancy Act should be proved before the interest of the plaintiffs could be terminated. In the view of the learned Judge of the lower Appellate Court, it was not necessary to enquire and decide whether or not such a notice had been duly served. The case must, therefore, go back to the Court of the learned Judge to have the appeal re-heard on the question as to whether the interest of the plaintiffs has been duly annulled under the provisions of the Bangal Tenancy Act, and if it appears that the matter has not been properly determined in the Court of first instance, the learned Judge will be at liberty to send the case back to the Court of first instance for the purpose of taking any further or additional evidence that may be considered necessary, in order to prove that the interest of the plaintiffs has been duly annulled under the provisions of the Bengal Tenancy Act. Costs will abide the result of the further hearing before the learned Additional Judge.
3. I agree.