JUDGMENT 1. The Plaintiff, who is the Appellant before us, is the purchaser of an estate at a sale for arrears of Government revenue. The laud which is the subject-matter of controversy between the parties is situate within the ambit of that estate. The Defendant is a raiyat having a right of occupancy in respect of certain lands within the estate. The Plaintiff sued to recover the land in question upon the ground that the Defendant was unlawfully holding the same; and the latter pleaded that it was part of his raiyati holding. The holding which the Defendant occupies was created, as appears from the judgment of the learned District Judge, more than thirty years ago. At that time, part of the holding was fallow and jungle : but, so far as the land in suit is concerned, it was not brought under cultivation, as appears upon the evidence adduced by the Defendant himself, as stated in the judgment of the Court of first instance, until 10 or 12 years antecedent to the institution of the suit The Court of first instance, being of opinion that the Defendant had failed to prove that the land in suit appertained to the holding in his occupation, gave Plaintiff a decree for khas possession. That decree has, however, been set aside by the District Judge upon the ground that the Plaintiff has failed to prove that the land in suit was not originally included in the Defendants' holding. The District Judge, however, begins by saying: "It is admitted that the tenancy was created more than thirty years ago and that part of it was then fallow and jungle. It is for the Plaintiff, therefore, to show that the particular parcels which he claims as excess lands were not originally included in the Defendants' holding;" or, in other words, because at the time when the tenancy was created part of the holding was fallow and jungle, the Plaintiff must begin by showing that the land in suit was not demised to the Defendant, We are, however, unable to accept this proposition as correct. As already mentioned, the Plaintiff is the purchaser at a sale for arrears of Government revenue and, as such, having regard to the terms of sec. As already mentioned, the Plaintiff is the purchaser at a sale for arrears of Government revenue and, as such, having regard to the terms of sec. 37 of the Revenue Sale Law (Act XI of 1859), he has a prim facie title to all the lands comprised within the estate purchased by him unless the case falls within one or other of the exceptions specified in that section, or unless any particular land is held by a raiyat having a right of occupancy as mentioned in the proviso of the said section. Sec. 21 of the Bengal Tenancy Act has, however, made some modification in respect of this matter; for that section provides : -- "Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all laud for the time being held by him as a raiyat in that village." So that, if a settled raiyat of a village can show that he is holding any particular land as a raiyat in that village, he would be a settled raiyat in respect to that land. But however that may be, it seems to us that the Defendant, who claims to be a raiyat in respect of the land in suit, has to start a prim facie case by showing that, at the time when the revenue sale took place and the Plaintiff purchased the estate, he held the land in suit as a raiyat within the meaning of the proviso to sec. 37 of Act XI of 1859, or within the meaning of sec, 21 of the Bengal Tenancy Act. And in this respect, we are of opinion that this case is clearly distinguishable from an ordinary case of the kind where the landlord seeks to eject the Defendant from a piece of land which he claims to be part of his khas property, and the Defendant, who is either admitted to be or is proved to be a tenant in the estate belonging to the Plaintiff, claims it to be put of his tenure or holding. The learned vakils on both sides have called our attention to several cases as bearing more or less upon the matter now before us; but we think that none of these cases have any real application to the facts of the present case, where the Plaintiff is a purchaser at a sale for arrears of Government revenue and the Defendant claims the land as part of his holding. We think the judgment of the District Judge, as it now stands, cannot be supported, and the case must be sent back to him for reconsideration with reference to the observations that we have just made. It will be his duty to find in the first instance whether the Defendant has made out a prim facie case, and then to consider whether, upon the entire evidence in the case, the land in suit is within or outside the holding which the Defendant holds in the estate which has been purchased by the Plaintiff. Costs will abide the result.