JUDGMENT

1. This appeal arises out of a suit brought by the Plaintiff, who is the lessee of the proprietors, 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 zirat or private lands of the proprietor, and that the Defendants have no right to remain on them. The defence was a denial of the fact that the lands were zirat, and the Defendants claimed an occupancy right in them.

2. The first Court found that the lands were the zirat 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 Roy, 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.

3. On appeal by the Plaintiff, the lower Appellate Court has affirmed the decree of the first Court, holding that sec. 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 zirat 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.

4. 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.

5. Against this decision of the lower Appellate Court the Plaintiff has preferred this second appeal, and it is urged on his behalf, first, that sec. 116 of the Bengal Tenancy Act applies to this case; 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 thicadar 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 big-has in relation to which alone the rights of the parties had been determined by its judgment.

6. The judgment of the lower Appellate Court proceeds on the assumption that the lands were the proprietor's zirat I 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 zirat 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 sec. 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.

7. 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 zirat 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 zirat land, they having in the first Court denied that the land was zirat, and the parties having gone to trial upon an issue on that point.

8. This being premised let us see how far the opinion of the lower Appellate C