JUDGMENT

1. This is a suit for ejectment on the ground that the defendant is an under-raiyat and is liable to ejectment upon notice, which the plaintiffs allege they served on him. It is common ground that Mousa was an occupancy raiyat in respect of the land in suit under certain Lakherajdars whose Lakheraj interest subsequently passed to the Gouripu Zemindars. The plaintiffs' case is that their father Ful Chand had purchased the occupancy right of Mousa about 40 years before suit and that after such purchase Mousa retained possession of the holding and was paying rent to Ful Chand as an under raiyat. The fact that Ful Chand was in receipt of such rent is not denied. The defendant, however, alleges that Ful Chand, somehow by arrangement with the Lakherajdars, he being their Pleader, got himself recognised as a middleman between the Zemindar and Mousa the tenant. It is denied that Ful Chand ever purchased the interest of Mousa. The defendant says that in 1894, he purchased the occupancy right from the heirs of Mousa and holds the land as such occupancy raiyat. The first Court dismissed the suit. That decision was modified by the Court of Appeal below. That Court granted a decree for ejectment from the agricultural area of the holding, but upheld the decree of the first Court in so far as it related to the homestead land.

2. On second appeal it is contended that the findings of the lower Appellate Court are conflating and upon those findings the decree passed by that Court cannot be supported. I must admit that the findings regarding the purchase of Mousa's occupancy right by Ful Chand are neither clear nor wholly consistent. But at the same time it is not difficult to understand what the learned Judge really meant to find. It seems his opinion was that the direct evidence to prove such purchase was insufficient and unreliable, but he thought that upon the surrounding circumstances a strong presumption arose in favour of such purchase. fie clearly rejected the story of the defendant that Ful Chand had become a middleman by some act of the malik. I, therefore, take it as a finding of fact that Ful Chand did purchase the occupancy right of Mousa.

3. The learned Vakil for the appellant next urges, even assuming that Ful Chand purchased the occupancy holding of Mousa. as after that purchase Mousa and his heirs as well as the defendant No. 1 who is a purchaser from Mousa's heirs remained in occupation of the land and cultivated it for more than 12 years, the defendant must be held to have acquired a right of occupancy. In support of the argument reliance is placed on the words of Section 6 of Act VIII of 1869, by which Act the present ease is governed. The words of the section strongly support that contention. No authority has been quoted in support of the proposition that if Ful Chand acquired a right of occupancy by purchasing the interest of Mousa, although be never himself cultivated the land, no one accepting a tenancy under him could acquire a right of occupancy by cultivating the land for any number of years.

4. It appears from the examination of the provisions of that Act that the distinction made by Act VIII of 1885 between a a raiyat and an under raiyat was not recognised by the Act of 1869. As a matter of fact the word "under raiyat" is nowhere to be found in that Act. The word "raiyat," therefore, included all classes of tenants who were actual cultivators of the soil, and it was immaterial whether such cultivator held his tenancy under a middleman or under a person who, though an occupancy raiyat originally, had placed another tenant in possession of the lands of his tenancy for purposes of cultivation unless, to quote the words of the section, such sub-lease was for a term or year by year." Here it is not shown that the sub lease by Ful Chand was of this description. The long possession of Mousa and his successors would seem to lead to a contrary conclusion. Upon this view of the case there was nothing to prevent Mousa or h