Jenkins, C.J:— The Appellant is a Defendant against whom a decree has been passed declaring the Plaintiffs' jamai title to the land in suit, and ordering that they do recover possession against the Defendant. It is the Plaintiffs' case that they are raiyats who have cultivated the land from 1884 to 1908, and that by virtue of the interest so acquired by them they are entitled to be put into possession of the land from which they have been wrongly ousted by the Defendant. The District Judge of Nadia has by his decree confirmed the decision of the Munsif, and it is from this decree that the present appeal has been preferred. It has been contended before us that notwithstanding the Plaintiffs' long cultivation of the land, they have not acquired either occupancy or non-occupancy rights. To follow this contention it is necessary to narrate briefly the dealings with this land. It is a part of a chur that formed many years ago. In 1884 it came into possession of the Plaintiffs' ancestors as raiyats, and from then till 1908, it has continuously remained in the possession of the Plaintiffs and their ancestors by whom it has throughout been cultivated. This possession would ordinarily clothe the Plaintiffs with a right of occupancy: but the Defendants maintain that this is not so as the land is chur held under the custom of utbandi, and from 1890 to 1898 it was held by the Plaintiffs' ancestors as ijaradars. This, it is urged, has brought into play secs. 180 and 22(3) of the Bengal Tenancy Act to the detriment of the Plaintiffs. But I do not agree. True, that from 1890 to 1891 the Plaintiffs' ancestors were ijaradars of a considerable area which included the small parcel of land now in dispute, but notwithstanding this they still continued to hold as raiyats as they had done before without any break in the occupation or change of its character. The utmost that can be said is that during the currency of the ijara the active operation of the possession as a means of acquiring the right of occupancy was suspended, and remained in abeyance, but there was no interruption in the continuity of this possession by the possession of any other raiyat. [Mukandi Lal v. Crowdy, Savi v. Panchnun, Lal Bahadur v. Solano].
Sec. 180 of the Bengal Tenancy Act provides that a raiyat who, in any part of the country where the custom of utbandi prevails, holds land ordinarily let under that custom and for the time being let under that custom, or who holds land of the kind known as chur or diara shall not acquire a right of occupancy until he has held the land in question for 12 continuous years. But this the Plaintiffs have done in the view I have expressed, though for 8 years there was a suspension of effective possession and that period is excluded from computation.
I would therefore confirm the decree of the lower Appellate Court with costs.
Ray, J.:— I concur. The Plaintiffs were raiyats for 1884 to 1889. They became ijaradars in 1890 but they still continued to cultivate the lands as before. They then preserved their status as raiyats. Cl. 3 of sec. 22 of the Bengal Tenancy Act does not bar this continuance of the raiyati right and it certainly does not say that the raiyat by becoming an ijaradar of the place forfeits his rights as a raiyat of the lands he was occupying. It only provides against the acquisition of the right of occupancy during the term of the ijara. In the case of Maseyk v. Bhagabati, Sir Comer Petheram takes the same view. His Lordship observes:—“The provisions of sec. 22(3) do not say that he shall lose all his rights as a non-occupancy raiyat or as a tenant”. The case in the Bengal Law Report quoted by my Lord is exactly on all fours with the present and although that was a case under the old Rent Law, there is nothing in the present law for holding otherwise. The lands are utbandi but there has been occupation as a raiyat of the same lands for 12 continuous years, and so the Plaintiffs have acquired a right of occupancy.
Appeal dismissed.