1. The plaintiff sued for khas possession of the land in suit upon declaration of his ryoti interest therein. He claims to have purchased the land from one Ram Kumar Chakravarty, who had an occupancy right in it. The principal defendants contend that Ram Kumar had a mokarari mourashi kayami right and that he settled the land with their predecessor Bangsi Sil by a lease, dated the 28th Kartick 1302 (Exhibit G) under which they Claim an occupancy right. The case, therefore, depends on the question as to what right Ram Kumar had and what right was acquired by Bangsi Sil under Exhibit C. The trial Court was of opinion that Ram Kumar was an occupancy ryot, that his right was heritable but not transferable, that the plaintiff after his purchase had not been recognized by the two-annas co-sharer superior landlord, hence his title to the ryoti was only to the extent of 14 annas share. He also held that Bangsi's ryoti under Ram Kumar was not heritable and, therefore, it did not pass to his heirs, the defendants Nos. 1, 2 and 3, who became trespassers upon his death. These persons, however, had taken a howla tenure in respect of one anna share in the said land and had thus become landlords of the plaintiff also to that extent, and that they as such landlords held adverse possession since the 10th January 1914, which is the date of the death of their father, Bangsi Sil, and inasmuch as the present suit was brought on the 29th March 1916, he found that it was barred under Article 3, Schedule III, Bengal Tenancy Act. He also held that notice of ejectment was necessary upon the defendants but such notice had not been serve and the suit was, therefore, not maintainable.
2. On appeal the learned Subordinate Judge held that the suit was not barred by limitation. He was not satisfied from the evidence that the defendants had dispossessed the plaintiff in their capacity as fractional landlords : that they were in possession as the heir of Bangsi Sil under the lease which had been granted to him by Ram Kumar, and inasmuch as the suit had been instituted . within 12 years of the death of Bangsi Sil, the plaintiff was within time. He next found that the plaintiff had got a ryoti title to 15-annas and not 14-annas only as found by the learned Munsif, that the plaintiff's purchase of Ram Kumar's interest was not recognised by the one-anna landlords, namely, the defendants Nos, 1 and 2, who had purchased a howla right to one anna as aforesaid, and he held that the plaintiff had in the circumstances gob a ryoti title to 15-annas share of the land in suit. He agreed with the Munaif that Ram Kumar was not a ryot of a fixed rent but that he was only a ryot with a right of occupancy in respect of the disputed land, that Bangsi Sil's status was that of an under ryot under Ram Kumar and that the defendants did not inherit his under ryoti right and that the defendants were trespassers.
3. A contention was raised that inasmuch as the jama of this ryoti had remained unchanged for more than 20 years the presumption under Section 50 of the Bengal Tenancy Act should apply. He held that this was not a suit under that Act inasmuch as the defendants were not under ryots under the plaintiff and that, therefore, the defendants were not entitled to any notice under Section 49, Clause (b). The defendants contended that even if the Court held that Ram Kumar had not a mourashi right, yet they had acquired a right of occupancy having been on the land for much longer than the statutory period. They contended that Ram Kumar having granted the lease under which Bangsi built his homestead, made excavations and gardens and as after Bangsi's death the defendants had remained upon the land, Ram Kumar could not be heard to say that Bangsi was a trespasser, although Ram Kumar could not legally have granted such a lease as ho had and that as Ram Kumar would have been estopped from raising any question as regards the validity of the lease, the plaintiff having purchased from Ram Kumar's son was equally estopped. The learned Subordinate Judge held that Ram Kumar had no right to grant such a lease which was for a term exceeding 9 years, that in the lease Rim Kumar had stated that he was a kayami ryot, which did not necessarily imply that he was a ryot at a fixed rent. He found that it did not appear that Rim Kumar had made any representation that he was a ryot at a fixed rent or that his right was other than that of au occupancy ryot, nor did it appear that Bangsi, believing in any representation of Ram Kumar, was thereby induced to take the lease. He referred to Candi Caran Nath v. Somli Bibi 44 Ind. Cas. 254 : 22 C.W.N. 179 : 28 C.L.J. 91 and held that the grantor could question the validity of such a lease. He also found that the defendants had failed to make out that they had any occupancy right. He finally held that the plaintiff was entitled to get ijali khas possession in respect of 15-annas share only of the lands in suit: hence this appeal.
4. It has been strongly contended on behalf of the defendants, first, that they cannot be considered as trespassers and they cannot be ejected without notice to quit, that the lease, Exhibit C, is operative, that Bangsi having been put in possession and built a house and garden and excavated a tank, the plaintiff is estopped from questioning the defendants' title under the lease, that even if Section 50 of the Bengal Tenancy Act be not applicable, the general presumption of fixity of rent has not been considered by the Judge, that even if it be held that Bangsi had only an under-ryoti right, such right is heritable and, therefore, the defendants are not trespassers and that the suit was barred under Article 3, Schedule III, of the Bengal Tenancy Act. Having regard to the learned Subordinate Judge's finding that the defendants had not dispossessed the plaintiff in their capacity as fractional landlords and also having regard to the fact that the plaintiff was not recognised by defendants Nos. 1, 2 and 3 as landlords, the suit was not barred by limitation. Both the Courts have found that Ram Kumar had only an occupancy right, that he had no mokarari mourashi right and, therefore, he could not have granted a lease for a term exceeding nine years. Such a lease is clearly invalid and could not have been registered. See Chandi Charan Nath v. Somla Bibi 44 Ind. Cas. 254 : 22 C.W.N. 179 : 28 C.L.J. 91. All the cases up to that date were reviewed by one of the learned Judges who held as the result of his review 'that the document creating the lease cannot be given in evidence if the lease is for more than 9 years and whether the document has been registered or not, the lease is void.' He also held that the authorities led to the conclusion that the validity of such a lease can be questioned by the grantor or by a person claiming from him. The express provision of Section 85 of the Bengal Tenancy Act cannot be overlooked. Upon the findings of the learned Subordinate Judge the elements essential to attract its operation are also wanting in this ease. Bam Kumar describes himself in the lease as a knyarni ryot, which does not necessarily imply that he was a ryot at a fixed rent. The Subordinate Judge also held upon the evidence that it did not appear that Ram Kumar had made any representation that he was a ryot at. a fixed rent or that his status was other than that of an occupancy ryot or that Bangsi, believing in any representation of Bam Kumar, was induced to take the lease. That being so, we are unable to accept the contention that the plaintiff is estopped from questioning the lease. It has also been found as a fact that Ram Kumar was not a ryot at a fixed rent. Section 50 of the Bengal Tenancy Act clearly does not apply in this case, as the tenancy dates from the lease. It is clear upon the findings that Bangsi was an under-ryat. It is contended that an under ryoti right is heritable. The point was distinctly raised before the Full Bench in Arip Mandal v. Ram Ratan Mandal 81 C. 767 : 8 C.W.N. 479 in which it was held that irrespective of custom or local usage the heir of an under ryot under an annual holding was entitled on the death of the under-ryot to remain in possession of the land until the end of the then agricultural year for the purpose, if the land has been sub-let, of realising the rent which might accrue during the year, or if not sub-let, for the purpose of tending and gathering in the crops. The learned Judges who referred the case were apparently of opinion that apart from any rights under the Tenancy Act the interest of an under-ryot in his tenancy could not be held to be terminated on his death but it must pass to his heirs and legal representatives. This view was not accepted by the Full Bench. In Mohunt Lukhan Narain Das v.Jainath Panday 11 C. W.N. 626 : 5 C.L.J. 457 : 34 C. 516 : 2 M.L.T. 219 it was held by the majority of the Full Benoh (Brett and Mitra, JJ., dissenting) that under the Bengal Tenancy Act the right of a non occupancy ryat is not heritable. A later Full Bench held in Vtitlniaoie Zenindiri Co. v. Hrishikesh Ghosh 25 Ind. Cas. 562 : 18 C.W.N. 828 : 41 C. 1108 : 19 C.L.J. 505 that the holding of a non-occupancy ryot is (apart from possible exceptions) heritable. Having regard to the Fall Bench case of Arip Mandal v. Ram Ratan Mandal 81 C. 767 : 8 C.W.N. 479 we cannot hold that the heir of an under-ryot has a heritable right to continue as a ryot. His right extends to tending and reaming the crops standing on the land, as therein laid down. Chapter VII of the Bengal Tenancy Act deals with under ryots. Section 48 limits the rent recoverable from under-ryots, Section 49 provides that an under-ryot shall not be liable to be ejected by his landlord, except (a) on the expiration of the term of a written lease, or (b) when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. This suit was brought mare than two years after Ram Kumar's death and we do not think that we can interfere with the judgment of the learned Subordinate Judge. The appeal is dismissed with costs.