1. The plaintiff is the purchaser of a patni tenure and brought this suit to eject the principal defendant after service of notice under Section 15 of the Patni Sale Regulation of 1819. The only question raised in this appeal is whether the defendant is protected from eviction under the proviso to Section 11 of that Regulation on the ground that he is a khudkast raiyat or resident and hereditary cultivator. The lower Appellate Court has found that defendant No. 1 and his father were in khas possession of the culturable portion of the holding by cultivating the same through labourers. It is also found that the defendant's father took lease of the land and built his bari on a part of it about 30 years ago. On these findings which I must accept in second appeal I hold that the lower Appellate Court was right.
2. Khudkast raiyats are described in paragraph 20 of Field's Introduction to the Regulation as raiyats cultivating lands in their own village or in village in which they are residing. On the findings the defendant comes within this description. It is urged that even if he is a khudkast raiyat he can he ejected from that portion of the holding which is not actually cultivated by him; and in support of this contention reliance is placed a decision of a Bench of this Court of which I was a member in the case of Jogendra Narain Roy v. Kiran Chandra Roy 50 Ind Cas. 406, 46 C.780 : 23 C.W.N. 315. But that was quite a different case. Then the fourth Exception to Section 37 of Revenue Sale Law (Act XI of 1859) had to be considered and not that part of it which deals with the cultivating raiyats. The fourth exception relates to land covered by buildings, etc. In Section 11 of the Putni Sale Regulation a person who is a khudkasht raiyat is protected from ejection from the holding including the part be uses for residential purposes as well as the waste land and the land he cultivates.
3. I accordingly uphold the decision of the lower Appellate Court and dismiss the appeal.
4. The only respondents who appear are the minors represented by the Deputy Registrar of this Court whose costs have already been paid. I, therefore, make no order as to test.