B.B. Ghose, J.
1. This appeal arises out of a suit for recovery of khas possession on declaration of the raiyati tight of the plaintiff after evicting the defendants who are under raiyats under the plaintiff and who hold under a kabuliyat. the term of which has expired. This is how the plaintiff frames his suit. It was dismissed by the Munsif who held that the defendants were under-raiyats but that no notice had been served under Section 49 of the Bengal Tenancy Act on them and, therefore, the plaintiff was not entitled to a decree for ejectment. On appeal by the plaintiffs the learned Subordinate Judge holds that the defendants are not in possession of the land as tenants but as labourers. This view, I think, it was not open to the Subordinate Judge to take because the plaintiff comes to Court on the allegation that the defendants are under-raiyats. The facts, shortly stated, are these:--The plaintiff was a co-sharer landlord with regard to a certain, occupancy holding which has been found to be non-transferable. He purchased the occupancy holding and then let it out to the defendants under a kabuliyat dated 2nd Pous 1317 B.S. for a term of one year only which expired in Pous 1318 B.S. With regard to the meaning of this kabuliyat, there is some dispute which I shall state later on. The defendants continued in possession, after the expiry of the term of that kabuliyat and the present, suit was brought in May 1919 which correspond, with sometime in Jaith 1326 B.S. The question is, what is the status of the defendants. The learned Subordinate Judge, as I have said, holds that, under the kabuliyat, the defendants are mere labourers. Whatever may, be the true construction of the document the defendants did not hold the land at the time of the suit under the terms of the kabuliyat. The plaintiff mentions in his plaint that the defendants have been 'holding over' and that they are korfa raiyats under the plaintiff. There cannot be any question, therefore, that the defendants hold the land as tenants under the plaintiff whatever their status may be. The learned Subordinate Judge next says that the occupancy right of a raiyat prior to the purchase of the plaintiff not being transferable, Section 22, Sub-section (2), of the Bengal Tenancy Act has no application, and he seems to have held that the right of occupancy subsisted in the plaintiff and there could not be any merger. This, evidently is a misconstruction of the effect of Section 22, Sub-section (2), of the Bengal Tenancy Act. The question of transferability or non-transfer ability of occupancy right is only relevant with regard to the position of the co-sharer landlords when one of them purchases the occupancy right, that is, whether the other Co-sharers would be entitled to joint possession with the purchaser or would be entitled only to receive rent from the purchaser according to their shares in the property. In this case, that question does not arise, because the other co-sharers did not ask for joint possession and they have accepted the position that the plaintiff is entitled to possession by payment of their share of the rent to them. The question then is, What is the position of the plaintiff with regard to this land? The learned Vakil for the respondent does not contend that the occupancy right purchased by the plaintiff subsists as has been observed by the Subordinate Judge; but he contends that the plaintiff would be a non-occupancy raiyat with regard to the land. That position cannot be supported and it would lead to anomalies. Why should the plaintiff be considered to be only a non-occupancy raiyat? If the plaintiff is a settled raiyat of the village and if the contention of the plaintiff be accepted, then by the purchase he acquired a right of occupancy and he would be an occupancy raiyat under himself as well as under his co-sharers. Therefore, although Section 22, Sub-section (2), of the Bengal Tenancy Act (before the amendment in 1907 as that applies to this case) lays down that the occupancy right will cease to exist by such purchase, a new occupancy right would accrue to the plaintiff. Then, supposing that he would be a non-occupancy raiyat, would he be an occupancy raiyat by twelve years' possession of the land? It seems to me that it cannot be so. This question was discussed in one of the many cases which have clustered round Section 22 of the Bengal Tenancy Act. In the case of Ram Lal Sukul y. Bhela Gazi 6 Ind. Cas. 370 : 37 C. 709 : 14 C.W.N. 814 it was observed that a purchaser in the position of the plaintiff could not acquire a new occupancy-right under himself and his co-sharers. Mr. Justice Woodroffe, in delivering the judgment of the Court, says:--'To hold this' that is, that the purchaser acquires a new occupancy right 'would, I think, defeat the policy of the section and further the owner of the holding could not acquire a right adversely to himself in his other character as co-proprietor.' It seems to me, therefore, that the plaintiff was not a raiyat with regard to the land after his purchase of the occupancy right but was holding it in his right as a co-proprietor. The next question is what the position of the person to whom he lets out the land would be? He would, in my judgment, be a raiyat or a tenure-holder as has now been made clear by the provisions of Section 22, Sub-section (2), of the Bengal Tenancy Act, after the amendment in 1907, which says 'if such transferee sub-lets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.' The defendants, therefore, would be raiyats and not under raiyats as is contended for by the learned Vakil for the respondent If that is so, they are not liable to be ejected by service of notice under Section 49 of the Tenancy Act. The appeal 'is, therefore, allowed and the suit dismissed with costs in all the Courts.
2. I agree.