1. The appellants before us are the plaintiffs in a suit for possession. They claim the right to possess the land to which the suit relates as under-raiyats. The defendants include some of the co-sharer-landlords of the original raiyati holding. They have purchased the holding in execution of a decree for money obtained by them against the original raiyat. It is alleged that after their purchase they sub-let the land to the original raiyats, that is, to the persons under whom or under whose predecessor the plaintiffs originally came in as under-raiyats. These persons have also been made defendants. The Court of Appeal below has dismissed the suit on the ground that under Section 85 (1) of the Bengal Tenancy Act the plaintiffs have no valid title to possession as against the landlord defendants.
2. The conclusion seems to me to be based on a misapplication to the facts found of the law contained in the Bengal Tenancy Act as explained and illustrated by decided cases. The present case is clearly within the principle of such oases as Amirullah Mahomed v. Nazir Mahomed 34 C. 104 : 3 C.L.J. 155 and Lal Mahomed Sarkar v. Jagir Sheikh Mallik 2 Ind. Cas. 654 : 13 C.W.N. 913. The distinction between the position of a landlord who purchases a raiyati interest under a private alienation and the position of the landlord who purchases that interest in execution of a decree for arrears of rent at a sale under the Bengal Tenancy Act is also adverted to in the case of Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 19 C.W.N. 1077 at 1081 : 22 C.L.J. 99 : 43 C. 178. The. landlord who purchases at a sale in execution of a decree for money is in no better position than the landlord who purchases under a private alienation. In both cases the purchaser is the purchaser of the right, title and interest of the raiyat.
3. No doubt the law as it was laid down in the two earlier of the cases to which I have referred, more especially in the case reported as Lal Mahomed Sarkar v. Jagir Sheikh Mallik 2 Ind. Cas. 654 : 13 C.W.N. 913 depended to some extent upon the provisions of Section 22 of the Act as they originally stood, and not upon those provisions as modified by the Amending Act of 1907. Moreover both cases were decided under Clause (1) of the section while the present case, the purchase of the holding having been made by some of the co- sharers-landlords, falls to be decided under Clause (2). But the result arrived at in the two cases in regard to transfers under Clause (1) had already been arrived at by a Full Bench in regard to transfers under Clause (2) Ram Mohan Pal v. Sheikh Kachu 32 C. 386 : 9 C.W.N. 249 : 1 C.L.J. 1 (F.B.). I have referred to the two cases because they explain the principle more fully and illustrate its effect upon the position of the under-raiyat let in by the transferring raiyat. Under both Clauses (1) and (2) in their original form the effect was that only the occupancy right and not the entire interest of the transferring raiyat came to an end and the transferee landlord (whether a sole landlord or a fractional landlord) could not say that the whole tenancy had been extinguished. Some intermediate interest still remained derived by the landlord from the raiyat which prevented the landlord from insisting upon any right which he might otherwise have had under Section 85 (1) to treat the under-raiyat as a mere trespasser.
4. It is unnecessary on the present occasion to consider the effect on the case-law of the change made in the language of Clause (1) of Section 22.
5. As regards Clause (2) the change does not seem for the present purpose to have altered the law as previously understood. The fractional landlord still appears to acquire from the raiyat some sort of tenancy or intermediate interest with the same effect as regards the right to treat the under-raiyat as a trespasser as before. Other, and possibly more difficult, problems may arise, but for the present purpose the topic need not be further pursued.
6. In my opinion the judgment and decree of the Subordinate Judge in the lower Appellate Court must be discharged and the case must be remitted to that Court in order that it may determine the issue dealt with by the Munsif but not dealt with by the Subordinate Judge, whether the plaintiffs have proved their title as under-raiyats under the original raiyats. If that issue is decided against the plaintiffs the suit will be dismissed. If it is decided in favour of the plaintiffs, a decree will be made entitling them to khas possession of the land in dispute and, unless the Subordinate Judge is able to dispose of the question either by agreement of parties or on the materials on the record, remitting the case to the Trial Court for further enquiry as regards the claim for mesne profits.
7. I agree.