1. This appeal arises out of a suit brought by the plaintiff, who is the lessee of the proprietor, to recover khas possession of certain lands, the area of which is stated in the plaint to be 9 bighas 10 cottahs, on the allegation that those lands are part of the zerait or private lands of the proprietor, and that the defendants have no right to remain on them.

2. The defence was a denial of the fact that the lands were zerait, and the defendants claimed an occupancy right in them.

3. The first Court found that the lands were the zerait lands of the proprietor: that out of the entire area claimed, which is stated as being 9 bighas only, a quantity of 3 bighas had been held by the defendant Ajodh Boy, the former lessee, without any title upon the expiry of his lease; and that the remaining 6 bighas had been held by the defendant Deva Roy as a raiyat under the former lessee; and it gave the plaintiff a decree for khas possession in respect of the 3 bighas claimed by the defendant Ajodh Roy, but dismissed the suit in respect of the 6 bighas claimed by Deva Roy.

4. On appeal by the plaintiff, the Lower Appellate Court has affirmed the decree of the first Court, holding that Section 116 of the Bengal Tenancy Act did not apply to this case, as the plaintiff had failed to show that the 6 bighas of land in question, which was found by the first Court to be the zerait land of the proprietor, had been held by the defendant Deva Roy under a lease for a term of years or under a lease from year to year.

5. There was a cross-appeal by the defendant Deva Roy, in which it was urged that the first Court ought to have held that he was a raiyat with a right of occupancy. The cross-appeal was dismissed on the ground that it was unnecessary to determine in this case to what class of raiyats the defendant Deva Roy belonged.

6. Against this decision of the Lower Appellate Court the plaintiff has preferred this second appeal, and it is urged on his behalf, first, that Section 116 of the Bengal Tenancy Act applies to this ease; secondly, that, if it does apply, the defendant Deva Roy had no right to remain on the lands after the expiry of the lease of the former thikadar under whom he held; and, thirdly, that the Lower Appellate Court was wrong in not coming to any decision as regards the 10 cottahs of land in excess of the 3 bighas and 6 bighas in relation to which alone the rights of the parties had been determined by its judgment.

7. The judgment of the Lower Appellate Court proceeds on the assumption that the lands were the proprietor's zerait lands. The learned Vakil for the appellant contends that the Lower Appellate Court has in effect affirmed the first Court's finding that the lands were the proprietor's zerait lands. On the other hand, the learned Vakil for the respondents contends that there has been no affirmance of the finding of the first Court by the Lower Appellate Court on this point; and that if the appellant's contention on the point of law as to the meaning of Section 116 of the Bengal Tenancy Act be given effect to, it will be necessary to remand the case to the Lower Appellate Court for a finding on the point whether the lands were the proprietor's zerait lands or not.

8. We are of opinion that the Lower Appellate Court has not come to any finding of its own upon the question whether the land in dispute was the proprietor's zerait land, it having been unnecessary, in the view that it took of the law, to arrive at any finding on the point; and that if the view of the law taken by the Lower Appellate Court is not affirmed, the respondents are entitled to a remand, as it was competent to them to ask the Lower Appellate Court to affirm the decree of dismissal made by the first Court upon the ground that the land was not the proprietor's zerait land, they having in the first Court denied that the land was zerait and the parties having gone to trial upon an issue on that point. This being premised, let us see how far the opinion of the Lower Appellate Court that Section 116 of the Bengal Tenancy Act is inapplicable to this case is correct.

9. It was found by the first Court that the lands were zerait, and for the purpose of the present question we must proceed upon the assumption that they are so. It is also found that the defendant Deva Roy came upon the land while it was held by the other defendant Ajodh Roy as a thikadar under the proprietor under a lease for a term of years; and the question is whether these two circumstances are not sufficient to bring the case within Section 116 of the Bengal Tenancy Act. We are of opinion that this question ought to be answered in the affirmative. The section says:

"Nothing in Chapter V shall confer a right of occupancy in, and nothing in Chapter VI shall apply to, a proprietor's private lands known in Bengal as khamar, nij' or nijjote, and in Behar as zerait, nij, sir or kamat, when any such land is held under a lease for a term of years or under a lease from year to year."

Here the lands, upon the assumption upon which we are now proceeding, were zerait lands, and they were held by the defendant Ajodh Roy under a lease for a term of years at the time when the defendant Deva Roy, who claims the benefit of Chapter V and to whom has been accorded the benefit of Chapter VI by the Court below, came upon the lands. Therefore, in our opinion, the lands in dispute must be held to be excluded from the operation of Chapter V, so far as it confers a right of occupancy, and also from the operation of Chapter VI of the Bengal Tenancy Act.

10. It was argued by the learned Vakil for the respondents that the true meaning of the section is this, that it excludes the operation of Chapters V and VI in respect of zerait lands only when such lands are held directly under the proprietor by the person who claims the benefit of either of those two chapters, under a lease for a term of years or under a lease from year to year; and that when such lands are held by the person claiming an occupancy or a non-occupancy right (and the latter is a very substantial right, regard being had t0 Section 44 of the Act) not directly under the proprietor, but under a lessee, that is a tenure-holder under the proprietor, the acquisition of an occupancy or a non-occupancy right, as the case may be, cannot be prevented; in other words, that the section applies only to cases where the proprietor retains his zerait lands as such directly under him, without interposing any tenure-holder between him and the actual raiyat, and takes the precaution of letting in raiyats either under, leases for terms of years or under leases from year to year. The language of the section is not very clear, and the question raised before us is not altogether free from doubt; but after weighing the conflicting considerations that arise, we are of opinion that the construction which the learned Vakil for the appellant seeks to put upon it is the true construction, and our reason is shortly this: As we understand the section, its object is evidently to exclude the proprietor's private lands from the operation of Chapters V and VI of the Bengal Tenancy Act, provided that the proprietor has taken a certain precaution which is indicated by the concluding words of the section, "where any such land is held under a lease for a term of years or under a lease from year to year." The question then arises-held by whom? The learned Vakil for the appellant answers "held by anyone whether a thikadar or a raiyat to whom the proprietor has let it out." And this answer is quite in accordance with the language of the section, the Legislature not having said "where such land is held by a raiyat." On the other hand, the learned Vakil for the respondents contends that the section applies only where the land is held by a raiyat who alone can claim the benefit of Chapters V and VI under a lease for a term of years or under a lease from year to year. But this construction is in the first place open to the objection that it interpolates the words, by a raiyat" after the words "is held," and in the second place there is this further difficulty in the way of our accepting it, that it would prevent the protection contemplated by the section from being operative, although the landlord may take the precaution of leasing the land to the person to whom he lets it for a term of years or from year to year. Take the case of a proprietor, for instance, who has lands that are admittedly his private lands, which are partially let out to raiyats under leases for short periods, and suppose that he leases the whole of his zerait lands to a farmer for a term of years slightly longer than the longest term for which any of the raiyats holds the same. Upon the expiry of the lease to the farmer the landlord will be precluded from obtaining khas possession from any of the raiyats, because the raiyats will then have held the land after the expiry of their leases under the farmer, and after the interposition of the farmer or tenure-holder had, according to the respondents' contention, destroyed the zerait character of the lands. We do not think that such a result could have been intended. If the proprietor lets out his private lands either under a lease for a term of years or under a lease from year to year, in our opinion he does all that is necessary to be done by him under Section 116 of the Bengal Tenancy Act to entitle him to the protection of that section so as to have his zerait lands secured against being burdened with any occupancy or non-occupancy rights in favour of raiyats contemplated in Chapters V and VI; and this having been done with reference to the lands in dispute, Section 116 of the Bengal Tenancy Act applies to this case.

11. Then arises the question, the subject of the second contention on behalf of the appellant, namely, whether upon that view of the case the defendant Deva Roy, on the expiry of the former thikadar's lease, ceased to have any right in the lands. He having been brought on the land by his landlord, who was a lessee under the proprietor for a limited term of years, prima facie his right would come to an end upon the expiry of his landlord's lease. This view is in accordance with general principles--see the case of Henderson v. Squire (1869) L.E., 4 Q.B., 170, and also the cases of Oomatara Debia v. Peena Bibee (1866) 2 W.R., 155, and Hurish Chunder Roy Chowdhry v. Sree kalee Mukerjee (1874) 22 W.H., 274.

12. It was argued upon the authority of Binad Lal Pakrashi v. Kalu Pramanik (1893) I.L.R., 20 Cal., 708, that the mere fact of the title of the person who inducts a raiyat upon any land ceasing or being non-existent, would not be sufficient to show that the raiyat's title ceased or did not exist. We are of opinion that case can have no application to a case like the present. The ground for the decision in that case was, as stated in the judgment of the learned Chief Justice, that the only right of the person who has obtained possession of the zsamindari is to the rent payable for the land and not to obtain khas possession of the land itself unless he can do so under the provisions of the Bengal Tenancy Act; and that ground is not applicable to rait lands protected by Section 116, the primary character of such lands Being that the proprietor is entitled to be in khas possession of them, and no raiyat can acquire any occupancy or non-occupancy right in them.

13. In this view of the case, and for the reasons we have stated at the outset, it becomes necessary to remand the case to the Lower Appellate Court for disposal after determination of the question whether the lands are really the proprietor's zerait lands; and we think it is also necessary to remand it for the determination of the question raised in the third contention on behalf of the appellant, namely, what are the rights of the parties in respect of the ten cottahs of land in regard to which the Courts below have come to no finding.

14. The costs will abide the result.