JUDGMENT

Mookerjee, Actg. C.J.

1. This Reference has been made in connection with a suit for recovery of possession of land upon declaration of title. The subject-matter of the litigation is a holding which belonged at one time to an agriculturist, Panchanan Das by name. A widow Rupa Dasi, who had a son Rajani Nath Das (the first Defendant) by her deceased husband, came to live with Panchanan Das as his mistress. They lived together for many years and the second Defendant, Hari Mohan Das, is their illegitimate son. Panchanan Das died in 1911. The Plaintiffs, who are the landlords, instituted the present suit on the 8th April, 1915, for recovery of possession of the holding on the ground that, as Panchanan Das had left no legal heir, the land had reverted to them. The parties were not agreed as to the status of the tenant; the Plaintiffs asserted that Panchanan Das was an under-raiyat, while the Defendants maintained that he was a raiyat. The Courts below did not determine this question, but held that, if the holding were assumed to have belonged to an occupancy raiyat, his right of occupancy was, u/s 26 of the Bengal Tenancy Act, extinguished upon his death, as he left no legal heir;