JUDGMENT Biswas, J. - It appears that both the Courts below have approached the case from a wrong point of view. The Plaintiff is a tenure-holder, and it is said, the pro forma Defendants held a raiyati jama under her. She obtained a rent-decree against them, and in execution of the decree, purchased the holding herself. She thereafter proceeded to annul an under-raiyati jama held under them by the contesting Defendants by service of notice under sec. 167 of the Bengal Tenancy Act. They did not, however, quit the lands, and hence this suit for declaration of title and khas possession. Both Courts dismissed the suit. The lower Appellate Court has found that the notice under sec. 167 had been duly served, but held that the Plaintiff was not entitled to succeed as the Bengal Tenancy Act did not apply. It based this conclusion on the ground that the under-raiyati jama consisted of homestead lands within the jurisdiction of the Kumarkhali Municipality, and was not, therefore, an agricultural tenancy, and following a decision of this Court in Munshi Alauddin Ahammed Choudhury v. Tomizuddin Ahammed 41 C.W.N. 1001 (1937), it held that it was consequently not subject to the provisions of the Bengal Tenancy Act. 2. Now, it seems to me that the question as to the Plaintiff's right to annul the interest of the contesting Defendants would depend on whether or not she had obtained a rent-decree against her own tenants within the meaning of Chapter XIV of the Bengal Tenancy Act. If she had, there is no reason why having purchased the holding in execution, she should not be entitled to enforce her rights as purchaser under that chapter. Her purchase would be with power to avoid all incumbrances, and she could, therefore, annul any incumbrance on the holding in the manner provided by sec. 167. An "incumbrance" is defined in sec. 161 as including a "sub-tenancy" created by the tenant on the holding, not being a "protected interest" within the meaning of sec. 160, and the interest of the contesting Defendants would thus be an incumbrance liable to be annulled. For the purpose of determining whether the purchaser would have the right to annul a sub-tenancy, it is in my opinion wholly immaterial whether the sub-tenancy is for an agricultural purpose or not. There is no such limitation in the definition. 3. 160, and the interest of the contesting Defendants would thus be an incumbrance liable to be annulled. For the purpose of determining whether the purchaser would have the right to annul a sub-tenancy, it is in my opinion wholly immaterial whether the sub-tenancy is for an agricultural purpose or not. There is no such limitation in the definition. 3. Taking the words as they stand in the Act, the right to annul is made to depend on the nature of the decree in execution of which the purchase is made, and is wholly irrespective of the nature of the sub-tenancy sought to be annulled. Neither of the Courts below appears, however, to have addressed itself to what seems to be the governing factor in the case. 4. The learned Advocate for the Respondents accordingly pressed for a remand for a proper finding on the material question, namely, the nature of the tenancy held by the pro forma Defendants under the Plaintiff. He said that his clients never admitted that this was a raiyati jama, subject to the provisions of the Bengal Tenancy Act. There was no doubt a general denial of the Plaintiff's case in the written statement, and in that sense, there was a challenge of the raiyati character of the Defendants' holding. But there was no serious denial on this head, and no specific issue was raised on the point. Nor was there anything in the Defendants' evidence or in the cross-examination of the Plaintiff's witnesses to show that the Defendants made the case which their Advocate now suggests. The settlement khatian is on the record, and it clearly shows that the Defendants were recorded as occupancy raiyats. It is admitted that they have been on this land for over 20 years. 5. In this view of the matter, a remand would serve no useful purpose, except perhaps to give the Defendants a little further time to continue their resistance to the attempted ejectment. 6. Mr. Bhattacharyya sought to raise other defences. But these involve questions of fact, and he cannot be allowed to raise these points for the first time in second appeal. They are also devoid of merit, because they ignore the express provisions of sec. 167 of the Bengal Tenancy Act. 7. 6. Mr. Bhattacharyya sought to raise other defences. But these involve questions of fact, and he cannot be allowed to raise these points for the first time in second appeal. They are also devoid of merit, because they ignore the express provisions of sec. 167 of the Bengal Tenancy Act. 7. In my opinion, the judgments and decrees of the Courts below should be set aside, and the Plaintiff's suit decreed with costs in all Courts. The Defendants will be given two months' time to remove the structures on the lands and deliver up vacant possession; in default, the Plaintiff will be at liberty to have the huts and structures removed at the expense of the Defendants.