Judgement Appeal (No. 43 of 1920) from a judgment and decree (July 24, 1917) of the High Court at Patna, reversing a decree of a judge of that Court, and restoring a decree of the Additional Subordinate Judge of Monghyr which had affirmed, subject to a slight modification, a decree of a Munsif’s Court. The suit was brought by the appellant on December 5, 1912, in the Munsif’s Court to recover possession of about six bighas of land and mesne profits. The land in suit had been leased by the appellants predecessor in title to the respondents in May, 1903, for a period of nine years. It was found by the lower Courts in India that the land was khamat or ziraat land—i.e., the proprietors private land (see Bengal Tenancy Act, 1885, s. 116, as amended by the Bengal Tenancy (Amendment) Act, 1907, s. 40). The only question in the present appeal was whether the suit, not having been brought within six months of the expiration of the tenancy, was barred by art.1 (a) of Sch. III. of the Bengal Tenancy Act, 1885, or whether the period of limitation was twelve years from the expiration of the tenancy under the Indian Limitation Act, 1908, Sch. I., art. 139. The terms of art.1 (a), which was added to Sch. III., of the Act of 1885 by s. 61 of the amending Act of 1907, appear from the judgment. By the judgment appealed from a majority of a Full Bench of the High Court (Sir Edward Chamier C.J. and Mullick and Roe JJ.; Chapman and Jwala Prasad JJ. dissenting), reversing a decree of Atkinson J., held that art.1 (a) of Sch. III. of the Bengal Tenancy Act, 1885, applied, and that the suit was accordingly barred. The appeal to the Full Bench is reported at 3 Pat. L. J. 1. The view of the majority of the Full Bench is stated shortly in the judgment of the Judicial Committee. 1921. Dec. 20. Parikh for the appellant. The suit was not barred by limitation. The period was twelve years from the expiration of the lease as provided by art.139 of Sch. I. of the Indian Limitation Act, 1908. Art.1 (a) of the Bengal Tenancy Act, 1885, Sch. III., as amended by Ben. 1921. Dec. 20. Parikh for the appellant. The suit was not barred by limitation. The period was twelve years from the expiration of the lease as provided by art.139 of Sch. I. of the Indian Limitation Act, 1908. Art.1 (a) of the Bengal Tenancy Act, 1885, Sch. III., as amended by Ben. Act I. of 1907, s. 61, did not apply to the suit, because the respondents had not the rights of non-occupancy raiyats. The scheme of the Act of 1885 was to exclude tenants of khamat or ziraat lands from the Act. Sect. 116 of the Act provides that ch. VI. of the Act is not to apply to lands of that character; but it is only by ch. VI., that the right of a non-occupancy raiyat is conferred. That right is purely a creature of the statute; it cannot rightly be inferred that a tenant is a non-occupancy raiyat because he is not within either of the other two classes of raiyats referred to in s. 4 of the Act of 1885. [Reference was also made to Ganpat Mahton v. Rishal Singh (( 1914) 20 Cal. W. N. 14.); Dwarka Nath Chowdhuri v. Tafazar Rahman Sarkar (( 1916) 20 Cal. W. N. 1097.); Sheo Nandan Roy v. Ajodh Roy (( 1899) I. L. R. 26 C. 546.); Damodar Narayan Chowdhri v. Dalgliesh (( 1910) L. R. 381. A. 65.) ; and to the Bengal Tenancy Act, ss.19, 20, 21, 41, 42, 44 and 45.] The respondents did not appear. 1922. Jan. 20. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from a decree, dated July 24, 1917, of the High Court at Patna, which dismissed the plaintiffs suit to eject the defendant No. 1, Janki Singh, from certain land in Bihar. The suit was dismissed by the High Court on the ground that it had not been brought within time. The land in question is small in extent and in value, but the question of limitation involved is of importance in districts to which the Bengal Tenancy Act, 1885, as amended by the Bengal Tenancy (Amendment) Act, 1907, applies. The land in question is within the meaning of s. 116 of the Bengal Tenancy Act, 1885, proprietors private land known in Bengal as khamar, nij, or nijjot, and in Bihar as ziraat, nij, sir, or khamat. The land in question is within the meaning of s. 116 of the Bengal Tenancy Act, 1885, proprietors private land known in Bengal as khamar, nij, or nijjot, and in Bihar as ziraat, nij, sir, or khamat. The plaintiff is the proprietor of the land, as was his predecessor in title before him. Janki Singh held the land as a tenant under a lease which had been granted by the predecessor in title of the plaintiff for a term of nine years, which expired on May 31, 1912. On the expiration of the term the plaintiff demanded possession of the land, but Janki Singh refused to quit and give up possession; hence the suit in which this appeal has arisen. The suit was brought on December 5, 1912, in the Court of the Munsif of Begusarai in the District of Bhagalpur. The only question which it is now necessary to consider is—Was the suit brought within time? That question depends on whether the period of limitation applicable in this case is that prescribed by art.1 (a) of Sch. III. of the Bengal Tenancy Act, 1885, which for suits " to eject a non-occupancy raiyat on the ground of the expiration of the term of his lease," is six months from the expiration of the term, or is that prescribed by art.139 of Sch. I. of the Indian Limitation Act, 1908, which is twelve years from the determination of the tenancy. In his plaint the plaintiff alleged that the land in question was his "khudkasht" land, prayed for a declaration that the land was his "khamat" land, and that he was entitled to possession, and asked for a decree for possession, and for mesne profits. In his written statement Janki Singh denied that the land was khamat khudkasht land of the plaintiff, alleged that plaintiffs claim for a declaration that the land was his khamat khudkasht was barred by limitation, and alleged that the land was raiyati-mal land in which he had a right of occupancy. It is to be noticed that Janki Singh in his written statement did not suggest that he was a non-occupancy-raiyat or had any right of a non-occupancy-raiyat to resist the plaintiffs suit to eject him. It is to be noticed that Janki Singh in his written statement did not suggest that he was a non-occupancy-raiyat or had any right of a non-occupancy-raiyat to resist the plaintiffs suit to eject him. Janki Singh in his written statement was apparently relying upon a failure of the plaintiff at the trial to prove that the land was the plaintiffs private land as proprietor, his khamat ziraat land. The fifth issue as fixed by the Munsif was "whether any part of the claim is barred by limitation? "In his judgment the Munsif stated that the fifth issue had been "left untouched in arguments" by Janki Singhs pleader, and he decided the issue of limitation against Janki Singh. The seventh issue, which was considered by the Munsif to be the most important issue in the case, was not directed to the question of limitation, but had indirectly a bearing on that question it was, "Whether the land in suit is the khudkasht of the plaintiff, or the raiyati-jote of the defendant first party." The Munsifs finding on that issue was that the land in suit was " khudkasht of the plaintiff and not raiyati-jote of " Janki Singh. It is not quite clear what the Munsif precisely meant by "khudkasht of the plaintiff." He probably meant land cultivated by the plaintiff as his own. In the plaint the land in question was alleged to be the plaintiffs khudkasht khamat land—that is, khudkasht private land of the plaintiff as proprietor. In his observations on the sixth issue the Munsif apparently treated "ziraat" and "khudkasht of the Mahanth (the plaintiff) alone" as convertible terms. In his observations on the seventh issue the Munsif mentioned s. 120 of the Bengal Tenancy Act, 1885, which relates to the recording by a revenue officer of a proprietors private land (khamar, khamat. ziraat, etc.). On the whole, their Lordships are of opinion that the Munsif by his finding on the seventh issue meant that the land in question was the proprietors private land (khamat, ziraat), and was not land in which Janki Singh had, or could have, a right of occupancy. The Munsif had the Bengal Tenancy Act, 1885, before him, and he should have used the terms specified in the Act and not terms which might be ambiguous. The Munsif had the Bengal Tenancy Act, 1885, before him, and he should have used the terms specified in the Act and not terms which might be ambiguous. The Munsif, on March 31, 1914, gave the plaintiff a decree for possession, and dismissed his claim for mesne profits. From that decree Janki Singh appealed to the Court of the Subordinate Judge of Monghyr on the ground that the suit was barred by limitation, and that the land was not khamat (private, ziraat) land of the plaintiff. The plaintiff entered a cross-appeal against the dismissal of his claim for mesne profits. The Additional Subordinate Judge, before whom the appeals came, found that the land was khamat land, and that Janki Singh had no right to hold over, after the expiration of the term of his lease. In his judgment he said " It is faintly urged that the suit is barred by limitation. But there is nothing to show that the rule of limitation of six months applies to the cae. Moreover, the character of the land being khamat no limitation arises in the case," and he, on March 29, 1915, made a decree dismissing Janki Singhs appeal, and in the cross-appeal decided that the plaintiff was entitled to mesne profits and directed the Munsifs Court to assess the mesne profits in the executing of the decree. The rule of limitation which the Additional Subordinate Judge held did not apply as the land was khamat land was that of art.1 (a) of Sch. III., of the Bengal Tenancy Act. From the decree of the Additional Subordinate Judge, Janki Singh appealed to the High Court at Calcutta. The appeal came on for hearing as a second appeal before Atkinson J. in the High Court at Patna. The only grounds of the appeal to which it is now necessary to refer are that the suit was barred by limitation; that the land in question was not khamat land ; and that the Additional Subordinate Judge had erred in decreeing costs and mesne profits. The ground that the land in question was not khamat land was concluded by the finding of fact of the Additional Subordinate Judge. The ground that the Additional Subordinate Judge had erred in decreeing costs and mesne profits does not appear to have been supported in the High Court. The ground that the land in question was not khamat land was concluded by the finding of fact of the Additional Subordinate Judge. The ground that the Additional Subordinate Judge had erred in decreeing costs and mesne profits does not appear to have been supported in the High Court. In the course of the arguments in the appeal a decision of Mookerjee and Beach-croft JJ., in Ganpat Mahton v. Rishal Singh (20 Call W. N. 14.), in which they had held that art. 1 (a) of Sch. III., of the Bengal Tenancy Act, 1885, did apply to ziraat land, and the decision of Woodroffe and Chaudhuri JJ., (overruling a decision of Newbould J.), in Dwarka Nath Chowdhuri v. Tafazar Rahman Sarkar (20 Cal. W. N. 1097.), in which they had held that art. 1 (a) did not apply to khamar lands, were cited. Atkinson J. rightly regarded the decision of Mookerjee and Beachcroft JJ., as academical, as those learned judges had already in the appeal before them decided that the land there in question was not ziraat land. Atkinson J. agreed with the decision of Woodroffe and Chaudhuri JJ., that art. 1 (a) of Sch. III., did not apply to private land of a proprietor, and by his decree of February 7, 1917, dismissed Janki Singhs appeal with costs in the High Court, in the lower appellate Court, and in the Munsifs Court. From that decree of Atkinson J. Janki Singh appealed under the Letters Patent of the High Court, and as the appeal raised a question of limitation of considerable importance, it was heard by a Full Bench of the High Court at Patna, constituted of Sir Edward Chamier C.J., Chapman, Mullick, Roe, and Jwala Prasad JJ. These learned judges differed on the question of limitation, the Chief Justice, Mullick, and Roe JJ., holding that art. 1 (a) of Sch. III., of the Bengal Tenancy Act, 1885, applied, dismissed the suit as barred by limitation. On the other hand, Chapman and Jwala Prasad JJ., held that the article did not apply. Each judge gave his own reason for his conclusion, and some of the judgments contain much historical information. 1 (a) of Sch. III., of the Bengal Tenancy Act, 1885, applied, dismissed the suit as barred by limitation. On the other hand, Chapman and Jwala Prasad JJ., held that the article did not apply. Each judge gave his own reason for his conclusion, and some of the judgments contain much historical information. Although the question as to whether this suit, when it was brought on December 5, 1912, was or was not barred by limitation must depend on the true construction of the Bengal Tenancy Act, 1885, as amended by the Bengal Tenancy (Amendment) Act, 1907, some historical information as to the origin and development in Bengal of rights of occupancy in agricultural land held by raiyats is interesting. It appears that in the permanent settlement of Bengal the proprietors private lands (ziraat, demesne lands), which were kept for his own and his familys cultivation, as distinguished from his lands which were usually let to raiyats, were recognized; that it seems to have been the policy of the Government for many years that no rights of occupancy in such private lands should be acquired by raiyats ; and that the Legislature for the first time by s. 6 of Act X. of 1859 defined how a right of occupancy could be acquired. By s. 6 of Act X. of 1859 it was further enacted " but this rule " (as to acquiring a right of occupancy) "does not apply to khamar, nijjot, or sir land belonging to the proprietor of the estate or tenure and let by him on lease for a term or year by year....." The Bengal Tenancy Act, 1885, repealed Act X. of 1850, and by ch. V. it was enacted how rights of occupancy could be acquired by raiyats. Chapter VI., apparently created the "non-occupancy-raiyat," and for the first time conferred upon him a status and rights, but by s. 116 of that Act it was enacted " 116. Nothing in Chapter V. shall confer a right of occupancy in, and nothing in Chapter VI. V. it was enacted how rights of occupancy could be acquired by raiyats. Chapter VI., apparently created the "non-occupancy-raiyat," and for the first time conferred upon him a status and rights, but by s. 116 of that Act it was enacted " 116. Nothing in Chapter V. shall confer a right of occupancy in, and nothing in Chapter VI. shall apply to, a proprietors private lands known in Bengal as khamar, nij or nijjot, and in Bihar as ziraat, nij, sir or khamat, where any such land is held under a lease for a term of years or under a lease from year to year." By s. 40 of the Bengal Tenancy (Amendment) Act, 1907, s. 116 of the Bengal Tenancy Act, 1885, was amended, and as amended it is as follows "116. Nothing in Chapter V. shall confer a right of occupancy in, and nothing in Chapter VI. shall apply to, lands acquired under the Land Acquisition Act, 1894, for the Government or for any Local Authority or for a Railway Company, or belonging to the Government, within a cantonment, while such lands remain the property of the Government, or of any Local Authority or Railway Company, or to a proprietors private lands known in Bengal as khamar, nij or nijjot, and in Bihar as ziraat, nij, sir or khamat, where any such land is held under a lease for a term of years or under a lease from year to year." Sect. 45 of the Bengal Tenancy Act, 1885, which was in ch. VI., as it stood before the amending Act of 1907 was passed, was as follows " 45. A suit for ejectment on the ground of the expiration of the term of a lease shall not be instituted against a non-occupancy-raiyat unless notice to quit has been served on the raiyat not less than six months before the expiration of the term, and shall not be instituted after six months from the expiration of the term." As that section contained a prohibition against instituting a suit unless a notice to quit had been served six months before the expiration of the term, it was properly inserted in ch. VI., and not in a schedule of limitations. Sect. 45 was repealed, and the period of limitation which had been prescribed by it was by the Bengal Tenancy (Amendment) Act, 1907, inserted in Sch. III., as art.1 (a). VI., and not in a schedule of limitations. Sect. 45 was repealed, and the period of limitation which had been prescribed by it was by the Bengal Tenancy (Amendment) Act, 1907, inserted in Sch. III., as art.1 (a). As s. 45 stood in ch. VI., no one could have doubted that the non-occupancy-raiyat to whom it referred was a person who had obtained the status and rights of a non-occupancy-raiyat by reason of his having been a person upon whom that status and those rights had been conferred by ch. VI. But it would appear from the judgment of the Chief Justice, and Mullick and Roe JJ., that those learned judges considered that the effect of the repeal of s. 45 and the insertion of art.1 (a) in Sch. III., was to extend the limitation of six months to suits to eject persons who had not been non-occupancy-raiyats within the meaning of s. 45. It is quite clear that art. 1 (a) did not create or confer upon any one the status or rights of a non-occupancy-raiyat, and did not extend the limitation of six months to suits to eject persons who had not been non-occupancy-raiyats within the meaning of the repealed s. 45. The non-occupancy-raiyat of art.1 (a) must be a person who before his term had expired had acquired the status and rights of a non-occupancy-raiyat. The crucial question in this case is—When, if at all, and how had Janki Singh acquired before May 31, 1912, the status and rights of a non-occupancy-raiyat ? He had not acquired that status or those rights under ch. VI., as that chapter does not apply to the private lands of a proprietor, and it appears to their Lordships that it was only under ch. VI., that the status and rights of a non-occupancy-raiyat could be acquired. The learned Chief Justice apparently was of opinion that Janki Singh had acquired the status and rights of a non-occupancy-raiyat by virtue of the definition of a "tenant" in s.3, sub-s.3, of the Bengal Tenancy Act, 1885, read in conjunction with s. 4 (c) of that Act. As the decisions of the Chief Justice deservedly command respect, their Lordships will now in conclusion refer to s.3, sub-s.3, and s.4 (c) Sect.3, sub-s.3, is as follows " 3. As the decisions of the Chief Justice deservedly command respect, their Lordships will now in conclusion refer to s.3, sub-s.3, and s.4 (c) Sect.3, sub-s.3, is as follows " 3. Tenant means a person who holds lands under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person." That is merely a definition. That definition applied to the position of Janki Singh during the continuance of the term for which he held the land, and did not apply to Janki Singhs position after his term had expired, as then, in the circumstances of this case, Janki Singh became a trespasser liable to be ejected. Sect. 4 of the Act is as follows " 4. There shall be, for the purposes of this Act, the following classes of tenants (namely)—(1) tenure-holders, including under-tenure-holders, (2) raiyats, and (3) under-raiyats, that is to say, tenants holding, whether immediately or mediately, under raiyats ; and the following classes of raiyats (namely)—(a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity, (b) occupancy-raiyats, that is to say, raiyats having a right of occupancy in the land held by them, and (c) non-occupancy raiyats, that is to say, raiyats not having such a right of occupancy." Sect. 4 was merely a section specifying the classes of tenants to which the Act applied; it did not confer upon any tenant a status or any right, that was done by chapters III., IV., V., VI., and VII. Sect. 3, sub-s. 3, and s. 4 did not separately or conjointly create or confer upon any one any status or any right. With reference to (a) and (h) of s. 4 the Chief Justice correctly said that Janki Singh was not a raiyat holding at a fixed rate or an occupancy-raiyat, and then continued " Prima facie he was a non-occupancy-raiyat." But the Chief Justice did not suggest how or when Janki Singh had obtained the status and any right of a non-occupancy-raiyat in the land in question. The mere fact that Janki Singh had been for a term a tenant of private land (ziraat land) of the plaintiff, and had not been a raiyat holding at fixed rates or an occupancy-raiyat, did not raise any presumption that he had acquired the status or the rights of a non-occupancy-raiyat. It is obvious from a passage which occurs towards the conclusion of his judgment that the Chief Justice doubted that it had been intended that art.1 (a) of Sch. III., should apply to such a case as this. The passage is as follows "I think it is doubtful whether the legislature intended by the amendments made in 1907 to compel a landlord to sue for ejectment of a tenant of his private land within six months of the termination of the lease held by the tenant, and it may be that the result of holding that a raiyat of ziraat land is or may be a non-occupancy-raiyat will be that landlords will be placed in a less favourable position than the framers of the Act intended, but we must take the Act as we find it, and on a consideration of the Act as it now stands it appears to me that the only possible conclusion is that art.1 (a) of Schedule III., applies to such a suit as the one now before us." Their Lordships are of opinion that art.1 (a) of Sch. III., of the Bengal Tenancy Act, 1885, does not apply to suits to eject persons who were not in law non-occupancy-raiyats of the land, and consequently does not apply to this suit, and that the suit was brought within time, and they will humbly advise His Majesty that this appeal should be allowed; that the decree of the High Court of July 24, 1917, should be set aside with costs; and that the decree of February 7, 1917, should be restored. Janki Singh must pay the costs of this appeal.