B.B. Ghose, J.
1. These two appeals are by the defendant. They arise out of two suits for ejectment brought by the plaintiff on the allegation that the plaintiff was a ryot with regard to two holdings. The father of the defendant was his under-ryot. The under ryot having died in 1921, the defendant had no right to remain on the land as the interest of an under ryot is not heritable under the law. The defendant, therefore, is in the position of a trespasser and is liable to be ejected.
2. The plea of the defendant was that his father was an occupancy-ryot and that the predecessor-in-interest of the plaintiff, namely, Jogendra Ghose was a tenure-holder and Jogendra having granted a permanent lease to the defendant's predecessors, he was estopped from asserting that the defendant's predecessors were underrate and so the plaintiff who has obtained the interest of Jogendra by purchase at a sale in execution of a decree is also estopped from asserting that defendant's father was an under-ryot. The Munsif declared the interest of the plaintiff as a purchaser of the interest of Jogendra but dismissed the claim for ejectment and for mesne profits. The Subordinate Judge reversed the decision of the Munsif and held that the plaintiff is a ryot and, therefore, the defendant's father was an under-ryot under him and after the death of the defendant's father defendant had no right to remain on the land. He further held, reversing the decision of the Munsif, that the fact that the defendant had paid rent to the superior landlord on behalf of the plaintiff does not confer any title upon him. It is contended on behalf of the defendant by his learned Vakil that the Subordinate Judge is in error in holding that the plaintiff was a ryot and that defendant's father was an under-ryot. He relies upon the fact that this tenancy has been in existence for a great number of years. It was said to be the holding of one Najibulla which appears from the maliki karcha of 1290, i.e., 1883. In 1291 this was described as a jote. A jote may mean the interest of an occupancy ryot or of a tenure-holder. This is not conclusive, Under the tenant Najibulla or his successor-in-interest Jogendra, one Mahima held the land as a pure cultivating tenant. Jogendra held the land in the name of his benamdar Jadav. Mahima's interest was sold in auction in execution of a rent-decree and it was purchased by Jogendra who let it out by accepting a kabuliyat from the defendant's father Gobinda. In that kabuliyat the interest of Jogendra was described as a ganti and it purports to have conferred upon Govinda a permanent lease. Under these circumstances there is no doubt that Jogendra would have been estopped from asserting his right as a ryot and to eject the defendant on the ground that his father was a mere under-ryot. The Subordinate Judge, however, has found that the interest of Jogendra was merely that of a ryot which was purchased in execution by the plaintiff and after his purchase the plaintiff had to get his name mutated in the sherista of the superior landlord on payment of an enhanced rent. The Subordinate Judge holds that Jogendra also had to pay enhanced rent but the learned Vakil for the appellant says that there is no ground for so holding. Assuming that it is so, still there is no doubt that the plaintiff had to pay an enhanced rent in order to have himself recognised by the superior landlord. If Jogendra's interest had been that of a tenure-holder, there would have been no, necessity for this payment of enhanced lent for his recognition and this fact support^ the finding of the Subordinate Judge that what the plaintiff purchased was the interest of a non-transferable occupancy ryot.
3. With regard to the question of estoppel it is only necessary to point out that the plaintiff cannot be held to be bound by the estoppel of Jogendra as after having purchased at an execution sale he obtained a new title from the landlord at an increased rent.
4. The next question is whether after, the death of defendant's father, by payment of rent to the superior landlord on account of the disputed land on behalf of the plaintiff, the defendant has constituted himself a tenant. There is no allegation or finding that the plaintiff ever authorised the defendant to pay rent on his behalf. It is urged that this payment was made by the defendant with the knowledge of the plaintiff's gomasta and the plaintiff subsequently took advantage of that payment by paying only the balance of the rent due from himself to the superior landlord. It is urged that by this the plaintiff has precluded himself from suing the defendant in ejectment. This argument cannot be supported on any principle. If after the death of his father the defendant without any direction from the plaintiff pays rent to the superior landlord representing himself to do so on behalf of the plaintiff that would not confer upon him any right if the plaintiff does not choose to accept him as a tenant.
5. As to the plaintiff's taking advantage of the payment the only thing that can be said in answer is that the plaintiff had no option left. The landlord had credited the amount paid by the defendant in his books. The only amount he demanded from the plaintiff was the balance. The plaintiff, of course, might have re-paid the amount to the defendant as he was morally bound to do, as the Munsif has observed. But the Subordinate Judge found that the defendant's father was in arrears at the time of his death and, therefore, the plaintiff was entitled to receive some money from the defendant on account of his father's debt. The fact that the gomasta of the plaintiff knew about the payment by the defendant also cannot support the defendant's case. The gomasta cannot, in the absence of evidence, be held to be authorised to settle tenants on the land of the plaintiff or to recognise any person as tenant and his mere knowledge that the defendant was paying rent to the superior landlord cannot be said to bind the plaintiff in any way so as to compel him to recognise the defendant as his tenant.
6. One last point was sought to be urged that after the death of the defendant's father, the plaintiff sued the defendant for rent, under protest, it is said, for a period after the death of the defendant's father. If the plaintiff had really sued the defendant for rent for any period after the death of the defendant's father, that would be a recognition of the defendant's right as tenant and, that being so, he would not be entitled to eject the defendant without taking proper steps under the Bengal Tenancy Act for terminating the tenancy. But it seems that that suit was brought for use and occupation and that would not constitute a recognition of the defendant's tenancy. This ground was not specifically taken in the grounds of appeal as the learned Vakil for the respondent points out.
7. These two appeals, therefore, fail and must be dismissed with costs.
8. I agree.