1. This appear arises out of a suit for rent which has been decreed by the Court below. It is found that the village, in which the land was situated, was let out to an ijardar and that this ijardar settled the land in suit with the defendant in 1297 and collected rent from him at the rate of Rs. 15 odd. The ijara terminated at the end of 1300 and after that, the plaintiff's men continued to collect rent at that rate. In 1304, a registered kabulyat was obtained from the defendant at the rate of Rs. 30. The only question of importance that arises in this appeal is whether this kabulyat is rendered invalid by Section 29 of the Bengal Tenancy Act. On this point, the Subordinate Judge says that Section 29 of the Bengal Tenancy Act does not apply 'as the defendant has taken settlement of an old tenants land which he did not possess before his purchase.' In coming to this conclusion, the learned Subordinate Judge appears to have overlooked entirely the fact that the defendant at the time, when he executed the kabulyat, had been a raiyat on this land for seven years.
2. It has been argued that an ijardar has no power to settle raiyats on land and the fact that rent was collected after the expiration of the ijara, is conveniently attributed to the mistake of the plaintiff's men; but it is now perfectly well-settled that even if a trespasser settles a person as a raiyat on land, that person becomes a non-occupancy raiyat and is protected from ejectment. This was held by a Full Bench in the case of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708. It seems to us to follow a fortiori that if an ijardar gives a settlement of a holding to any one, that person becomes a raiyat on the land and this view is taken in the case of AtaI Chandra Rishi v. Lakhi Narain Ghosh 10 C.L.J. 55 : 2 Ind. Cas. 417 in which the learned Judges followed the case of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 which we have just quoted. No authority whatever has been shown to us for holding that a person holding lands, governed by the Bengal Tenancy Act, from an ijardar ceases to be a raiyat when the ijara comes to an end, and this supposition appears to be contrary to the whole spirit of the Act. It is clear, therefore, that when this kabuliat was executed, the defendant was a raiyat on the land. He also claims that he was a settled raiyat of the village, inasmuch as he had another ancestral holding. If he was a settled raiyat of the village, then under Section 21, he would have a right of occupancy in this holding also which was certainly held by him as a raiyat in that village in 1304 and Section 29 would apply to him. If, however, he was a non-occupancy raiyat in 1304, his rent could be enhanced by a registered agreement under Section 43 of the Bengal Tenancy Act. It appears to us, therefore, that the case must go back to the Subordinate Judge for a finding on this point whether or not the defendant is entitled to the benefit of Section 21, Sub-section 1, of the Act. If that is found in his favour, he is entitled to the benefit of Section 29 and the suit must be decreed at the admitted, rate. If, on the other hand, it is found that in 1304 he was a non-occupancy raiyat, then the decision of the Court below will stand.
3. Costs of this Court will abide the result.