1. This is an appeal against a decree in ejectment. The plaintiff was a purchaser at a sale of a Noabad Talaq under the provisions of Act; VII of 1868. The defendants are the tenants of a holding which was let out to them as a tank. The question is whether the defendants are protested by any of the clauses of Section 12 or by Section 11 of Act VII of 1868. The first Court held that the defendants were ryots with rights of occupancy and were, therefore, protested under Section 14 and also protected under Clause (4) of Section 12, as they had a house and a garden on the banks of the tank. The lower Appellate Court has reversed this decision and has given the plaintiff a decree for khas possession.
2. The first point urged was that as admittedly a tank was made on the land, the fourth Clause of Section 12 must be applicable. My attention has been drawn to the decision of this Court in the case of Ajgur Ali v. Asmut Ali 8 C. 110 : 10 C.L.R. 87 : 4 Ind. Dec. (N.S.) 70 and it is contended that it is immaterial whether, the tank was created before or after the creation of the tenancy. In that case the trying Court refusal protection to the tenants on the ground that that a wad no evidences that the defendants had sunk ponds and planted a garden, and the High Court pointed out that did not matter whether the improvements had been effected by the present holder or by some previous occupier. I think that the contention of the learned Pleader for the respondent is right and that that clause of Section 12 is only intended to preserve the rights arising from the improvements themselves, that is to say, unless the land of the tenancy is improved there is no reason why there should be any protection. All that the ruling, referred to, laid down, was that it was in material which holder of the land created the improvements. But it did not lay down that it was immaterial whether the improvements were created by the tenants or were in existence before the tenancy was created. Unless they are created by the tenants, they will not be improvements, I, therefore, hold that the ruling cited is of no assistance to the appellants. But it appears to me that they are entitled to succeed on the other ground urged. They were recorded in the Record of Bights as occupancy ryots. If this is right, they will be entitled to protection under Section 14. The learned Subordinate Judge has, however, held that they cannot be occupancy ryots because the tanks were let oat as independent holdings by themselves and not included in any ryoti holding and that the tank by itself cannot be the Subject matter of a raiyati holding. If the interest of the defendants is not that of ryots, then they must have some other kind of tenancy. If the land is not agricultural land as has been held, the tenancy right will be transferable and will be a tenure as defined in Section 1 of the Lind Revenue Sales Act. Whatever their interest is, it has been recognised in the settlement proceedings at the last temporary settlement and the rent has been fixed under the rent law for the period of such settlement. That gives them the right of protection under Clause 3 of Section 12. I, therefore, hold that it is immaterial whether they are occupancy ryots or not, and that in either case they are entitled to protection, either under Clause 3 of Section 12, or under Section 14. Taking this view, I must decree this appeal and reverse the judgment and decree of the lower Appellate Court and restore the decree of the first Court.
3. The appellants will get their costs in this Court and in the lower appellate Court.