JUDGMENT

Mitra, J. - The plaintiff is the purchaser of an entire estate sold for arrears of land revenue under Act XI of 1859. He seeks to eject the defendants, who are actual cultivators, on the ground that their interests have been avoided by the sale. They on the other hand plead that, notwithstanding the sale, their interests are protected by the proviso to Section 37 of the Act of 1859.

2. The Lower Courts have found that the holdings of the defendants consist of lands held by them partly for more than twelve years and partly for less than twelve years. The first Court, however, held that the two classes of lands were undistinguishable on the spot and decreed ejectment and mesne profits on the ground that the defendants having failed to make out, with respect to any specific parcel or parcels of land, their occupation as raiyats for more than twelve years before the sale, were not protected under the proviso to Section 37. The Court of first appeal did not disturb the finding of fact arrived at by the first Court, but assuming it to be correct came. to the conclusion that the defendants were protected as they were "settled raiyats" u/s 20 of the Bengal Tenancy Act, 1885, and had u/s 21 of the Act, occupancy rights in all lands for the time being held by them in each particular village irrespective of the period of occupation of each particular piece of land.

The plaintiff has preferred these second appeals and the main contention raised for him is that the defendants are not entitled to take advantage of the provisions contained in Sections 20 and 21 of the Bengal Tenancy Act and that their defences must fail on their failure to make out the existence of rights of occupancy as created by Act X of 1859, the only law contemplated by the framers of Act XI of 1859.

3. The purchaser of an entire estate sold under Act XI of 1859, is entitled to forthwith eject all under-tenants with certain exceptions, and one of these exceptions relates to raiyats with rights of occupancy at fixed rents or at rents assessable according to fixed rules under the laws in force. Is the expression "right of occupancy" limited to the right that could be acquired under, the rules laid down in Act X of 1859, or does it also cover "right of occupancy" that might be acquired; under laws promulgated since 1859 ?

4. The history of the laws made for the protection of the raiyats in Bengal and of the sale laws in particular so far as they refer to them seems to indicate that the Legislature did not in enacting the proviso to Section 37 of Act XI of. 1859 relating to occupancy raiyats intend to limit the right as contended for by the-appellant. If it were so, appropriate expressions indicative of the limited purpose could have been used.

5. The framers of the Regulation Code of 1793 started with the idea that khudkasht raiyats were not liable to ejectment, if they agreed to pay rent at the pergana rate "the rate of Nirekbundy of the pergana" (Regulation VIII of 1793, Section 60, Clause (2). Ejectment of raiyats was practically unknown in those days and the enhancement of the rents of khudkasht raiyats beyond the pergana rates was practically forbidden. The Code of 1793 therefore dealt largely with the relative rights of the proprietors Of "estates and dependent talukdars and other intermediate holders and farmers of revenue and had little to say about the actual cultivators or raiyats. A distinction was how-ever-made between khudkasht raiyats, i.e., resident cultivators and paikast raiyats or non-resident cultivators. The former, as we have seen, were protected from eviction, provided they paid rent at the customary rate; the latter were liable to ejectment at the option of the landlord. By Section 8 of Regulation I of 1793, the Governor-General in council retained the power to enact laws necessary for the protection and welfare of the raiyats and other cultivators of the soil. No laws. were, however, enacted for the protection of raiyats other than Khudkasht unti