JUDGMENT

Holmwood and Chapman, JJ. - This second appeal arises out of a suit brought by the plaintiff to have the holding of the defendant declared such a holding as can be annulled u/s 37 of Act XI of 1859.

2. It appears that the plaintiff is the purchaser of the rights of defendant No. 5 who purchased the taraf at a sale for arrears of revenue. The defendants Nos. 1 and 2 are persons whom the Judge found to have cultivated the land themselves for 30 years before 1895 when they obtained pottah as raiyats at fixed rates. That pottah of course confarred upon them higher privileges than that of ordinary occupancy raiyats, but it certainly did not take away the occupancy right which they had already acquired, for they must have acquired that right prior to the Bengal Tenancy Act, not that in our opinion it would make any difference. The protection of occupancy raiyats at fixed rates which is referred to in Section 37 of Act XI of 1859 is not one of the ordinary exceptions in that section. It is a proviso expressing the determination of the Legislature that no purchaser shall disturb any of the permanent tenants on the land who are in actual occupation of the soil and are cultivating it. The term "rights of occupancy at fixed rent" meant in the year 1859 apparently the successors of khademi khud khast raiyats in the Regulations, while the ordinary khud khast raiyats became occupancy raiyats. The intention of the Legislature therefore was that these khademi khud khast raiyats should not only not he liable to ejectment but should not be liable to any enhancement of rent; and to these persons have succeeded what the Bengal Tenancy Act now classes as "raiyats holding at fixed rates." Raiyats holding at fixed rates therefore are primarily the persons referred to in the proviso to Section 37 of Act XI of 1859. But this doctrine of protection has been extended by recent rulings of this Court to ordinary occupancy raiyats, and the judgment of Mr. Justice Mitra, which is the leading case [Sarat Chandra Roy Chowdhry v. Asiman Bibi () I. L. R. 1904 Cal. 725.] on this point, is frequently followed in this Court and has never been dissented from. The protection therefore is extended under the Bengal Tenancy Act from these khademi khud khast raiyats or raiyats at fixed rates to all classes of occupancy raiyats; and the decision of Mr. Justice Mookerjee, upon which the Chief Justice did not express any opinion, in the case of Bhut Nath Natskar v. Surendra Nath Dutt 13 C. W. N. 1025 which is based upon a technical interpretation of Section 160 of the Bengal Tenancy Act, can have nothing whatever to do with the question before us.

3. It may be argued that a person who takes the tenancy originally as a raiyat at fixed rates does not thereby acquire an occupancy right. But that does not imply that a man who has already obtained occupancy rights can by obtaining a grant of fixed rent lose that occupancy right. That appears to us to be neither in accordance with equity or common sense or the wording of the law.

4. We most therefore hold that the defendants were precisely in the position of those tenants who are mentioned in the proviso to Section 37 and that not only are they protected but nothing in the law can he construed to entitle the purchaser to eject them or to enhance their rent. That is the law, and to argue that the purchaser loses a valuable right, namely, the right of enhancement which he would have in the case of ordinary occupancy rights, is to misconstrue the whole effect of the section itself, which is in terms directed against enhancement. If the ruling of Mr. Justice Mitra is correct, an occupancy raiyat in the ordinary sense of the word is also protected by that section and it is doubtful whether in that case the purchaser can enhance his rent, although the Bengal Tenancy Act itself provides for the enhancement of the rent of an ordinary occupancy raiyat. However, this is not the question which we have to deal with here.

5. Another ques