William Comer Petheram, C.J.

1. I think that the case of Mohima Chunder Shaha v. HazariPramani I.L.R. Cal. 45 was rightly decided, and that the defendants are ryotsholding the land under the plaintiffs, the zemindars, and that they can only beejected under the provisions of the Bengal Tenancy Act.

2. The possession of the land in question for the purpose ofcultivating it was acquired a good many years ago by the defendants from thepersons who at that time were in actual possession of the zamindari withinwhich it was situated, and who were then the only persons who could givepossession of the lands of the zamindari to cultivators. It is not suggestedthat the defendants did not then obtain possession as tenants under the bondfide belief of the title of their landlords, but since then it has beenascertained by the judgment of a Court of law that the zamindari did not belongto these persons, but to the plaintiffs, and the question is whether, now thatthe plaintiffs have established their right to the zamindari, they can treatall cultivators who have been settled on the lands by the persons whom theyhave ousted from its possession as trespassers, and obtain khas possession ofall the ryoti lands from them at any moment without any notice and without anycompensation even for the crops on the land.

3. I am of opinion that they cannot. Section 5, Sub-section(2) of the Bengal Tenancy Act enacts that "ryot" means primarily aperson who had acquired a right to hold land for the purpose of cultivating it.The use of the word "primarily" in this section would seem toindicate that the definition was not intended to be exhaustive; but, however,that may be, I think that a person in the position of these defendants is aryot within this definition, and that the zemindar can only obtain khaspossession of the land occupied by him under the provisions of Section 44, theryot having non-occupancy rights. The possession and interest in the land whichthe defendants acquired from the persons in possession of the zamindari was aright to hold it for the purpose of cultivating it as against all the worldexcept the true owners of the zamindari, and against them unless they proved atitle to the zamindari paramount to that of the plaintiffs landlords.

4. This was, I think, a right to hold the land for thepurpose of cultivating it within the meaning of Section 5, Clause 2. It mayhave been partial, but if it was a right at all, it is within the definition inthe section : provided, of course, it was a right bond fide acquired by themfrom one whom they bond fide believed to have the right to let them intopossession of the land. In my opinion the defendants are ryots, and the onlyright of the person who has obtained possession of the zamindari is to the rentpayable for the land, and not to obtain khas possession of the land itself,unless they can do so under the provisions of the Tenancy Act. My answer to thequestion referred to this Bench is in the affirmative.

Henry Thoby Princep, J.

5. I am of the same opinion. I retain the opinion expressedby me in Mohima Chunder Shaha v. Hazari Pramanik I.L.R. Cal. 45.

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Binad Lal Pakrashi and Ors.vs. Kalu Pramanik and Ors.(23.05.1893 - CALHC)