1. This is an appeal by the plaintiffs in an action in ejectment. The disputed lands are comprised in a revenue-paying estate which was purchased by the plaintiffs on the 6th March 1916 at a sale for arrears of revenue. On the nth February 1918 the plaintiffs commenced this action to eject the defendant as a trespasser. The Courts below have dismissed the suit. The defendant was a cultivator who had acquired a right of occupancy many years before the suit and was recorded as an occupancy raiyat in the Record of Rights finally published in 1895. On the 16th July 1901 he took from the then proprietors a permanent lease under what was described as a taluki pottah. There is no controversy that if the defendant was an occupancy raiyat at the date of the commencement of this litigation, he was protected from eviction under Section 37 of Act XI of 1859. But the plaintiffs have contended that the effect of the permanent lease granted to him by the proprietors on the 11th July 1901 was to extinguish the right of occupancy which he then possessed and that thereafter he must be deemed to have held as a tenure-holder. If this contention is well-founded the plaintiffs are entitled to eject the defendant, because the existence of a tenure does not afford an answer to the claim put forward by the plaintiff as the purchaser of an entire estate under the revenue sale. The question for determination consequently is, what was the effect of the grant of the permanent lease by the proprietors to the defendant upon the occupancy right he possessed at the time.
2. The plaintiffs have urged that the occupancy right merged in the superior interest and in support of this position reliance has been placed upon the provisions of Section 22 of the Bengal Tenancy Act as it stood in 1901. That section, however, is of no assistance to the plaintiffs. The first Sub-section to Section 22 as it stood before its amendment in 1907 was in these terms: 'When the immediate landlord of an occupancy-holding is a proprietor or a permanent tenure-holder and the entire interest of the landlord and the raiyat in the holding becomes united in the same person by transfer, succession or otherwise, the occupancy right shall cease to exist, but nothing in this Sub-section shall prejudicially affect the rights of any third party.' Here the immediate landlord of the occupancy-holding is not the proprietor of the revenue paying estate. The entire interest of the landlords and the raiyat in the holding did not merge in the same person. The landlords carved out from their superior interest an intermediate tenure and created between themselves and the cultivator an intermediate interest in favour of the latter. The case is therefore, not within the scope of Sub-section (i) of Section 22. Sub-section (2) of Section 22 was in the following terms: 'If the occupancy-right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder the occupancy right shall cease to exist; but nothing in this Sub-section shall prejudicially affect the rights of any third party.' This Sub-section also had obviously no application to the events which had happened. The third sub-section was in the following terms: 'A person holding land as an ijaradar or farmer of rents shall not, while so holding, acquire a right of occupancy in any land comprised in his ijara or farm.' This Sub-section was equally inapplicable because the defendants were neither ijaradars nor farmers nor did they set up the acquisition of the right of occupancy during the pendency of their tenure. They had acquired that right before the tenure in their favour was created. The explanation to Section 22 was in these terms: 'A person having a right of occupancy in land does not lose it by subsequently becoming jointly interested in the land as proprietor or permanent tenure-holder, or by subsequently holding the land in ijara or farm.' This provision plainly could not be applied to this case. The position consequently is, that Section 22 as it stood in 1901 does not lend support to the theory that the occupancy right merged in the subsequently created interest as tenure-holder.
3. In view of this conclusion, we have to consider whether there was any general principle of law upon which the theory of merger could be supported. The answer, in our opinion, must be in the negative. The question was discussed in Hirendra Nath Dutt v. Hari Mohan Ghose 22 Ind. Cas. 966 : 18 C.W.N. 860 and Rambtshen Dutt v. Haripada Mukerjee 51 lad. Cas. 389 : 23 C.W. N. 830 : 29 C.L.J. 427 and it was pointed out that in cases unaffected by the provisions of the Transfer of Property Act and the Bengal Tenancy Act the union of superior and subordinate interests did cot by operation of law necessarily merge the subordinate in the superior interest. This view was maintained so far back as 1868 by Sir Barnes Peacock, C.J., in Womesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 where, with the concurrence of Loch and Jackson, JJ., he said as follows: 'My own impression is that the doctrine of merger does not apply to lands in the mofussil in this country, believe it is the practice in this country for zemindars to purchase and keep on foot putni taluks without the necessity of adopting tie practice, which is followed in England, of purchasing such taluks in the name of a trustee to prevent the merger of them. If the doctrine of merger applies, a zemindar could not purchase and hold a pulni tenure in khas possession.' The view thus indicated by Sir Barnes Peacock has been approved in Dulhin Lachhanbati Kumri v. Bodhnath Tiwari 66 Ind. Cas. 551 : (1922) A.I.R. (P.C.) 94 : 26 C.W.N. 565 : (1922) M.W.N. 58 : 15 L.W. 343 : 30 M.L.T. 216 : 3 P.L.T 383 : 4 U.P. L.R. (P.C.) 42, where the Judicial Committee enquired whether prior to the Transfer of Property Act there was a law of merger applicable in the mofussil. Lord Shaw pointed out that merger is not a thing which occurs ipso jure upon the acquisition of what, for the sake of a just generalisation, may be called the superior with the inferior right. The question to be settled in the application of the doctrine is, was such a coalescence of right meant to be accomplished as to extinguish that separation of title which the records contain? In support of this view reference was made to the cases of Ingle v. Jenkins (1900) 2 Ch. D. 368 : 69 L.J. Ch. 618 : 83 L.T. 155 : 48 W. R. 684 and Capital and Counties Bank v. Rhodes (1903) 1 Ch. 631 : 72 L.J. Ch. 336 : 88 L.T. 255 : 51 W.R. 470 : 19 T.L.R. 280 : In the first case, Ear well, J., pointed out that the principle applicable to the merger of charges in equity applies also to the merger of leases. The Court is guided by the intention and, in the absence of express intention, either in the instrument or by parol, the Court looks to the benefit of the person in whom the two estates become vested. As regards the merger of charges, this is the rule formulated by the Legislature in Section 101 of the Transfer of Property Act. The rule enunciated by Far well, J., was approved by Cozens Hardy, L.J., in the second case where he added that the decision was consistent with principle and supported by authority and that a Court of Equity had regard to the intention of the parties, to the duty of the parties and to the contract of the parties in determining whether a term was to be treated as merged in the freehold.
4. If, now, we test the case before us with regard to the intention of the parties it is obvious that the plaintiff cannot possibly succeed. The defendants were occupancy raiyats and enjoyed valuable privilege as regards protection from eviction in the event of a sale under the Revenue Sale Law. It is inconceivable that they should have intended that the acquisition of the interest of an intermediate holder should destroy a right so highly prized. But our attention has been in vited to the decisions in Manners v. Satroghan Das 36 Ind. Cas. 178 : 20 C.W.N. 800 and Picrpont. Morgan v. Ramjee Ram 55 Ind. Cas. 366 : 5 P.L.J. 302 : (1920) Pat. 168 : 1 P.L.T. 310 in support of the view that in cases of this description the Court should presume that there has been a merger of the subordinate interest in the superior interest. It is sufficient to say that if these cases purport to lay down a general rule of this character we cannot follow them in view of the pronouncements of the Judicial Committee. We hold accordingly, in concurrence with the District Judge, that the defendants are entitled to protection from eviction as occupancy raiyats. Their occupancy right has not been affected by the subsequent acquisition of the tenure.
5. The result is that the decree of the Court below is affirmed and this appeal dismissed with costs.