JUDGMENT Chakravartti, J. - These three appeals arise out of a single suit brought by one Nagendra Nath Choudhury for the ejectment of a number of persons from six Revenue Survey plots, comprising a portion of a tank and portions of three of its banks. The Plaintiff's case was that the plots appertained to a tenure, called Noabad Ijara No. 13. Kanta Prosad Hazra, which he had purchased at a revenue sale, but the Defendants were in possession of the plots without any right or title and had failed to vacate them although asked to do so. The Defendants, who came ultimately to be thirteen in number, included all persons claiming an interest in the lands. They fall into two classes, tenants and sub-tenants. Defendant No. 1 claimed no present interest, but alleged that he had previously a raiyati interest in all the lands which he had transferred to his wife, Defendant No. 11, before the institution of the suit. Defendant No. 11, who asserted this raiyati interest by her written statement, died during the pendency of the suit and thereupon her son, Defendant No. 11 (ka), was substituted in her place. Of the rest of the Defendants, some claimed to be subtenants under the raiyati as regards various portions of the lands and some again were said to be sub-tenants or licensees under one of such subtenants. Besides Defendant No. 1 and Defendant No. 11 (ka), we are concerned in these appeals with only Defendant No. 2(ka), who claimed a sub-tenancy under Defendant No. 1 and his successors-in-interest in some of the plots under two leases. Of those leases, one was taken By Defendant No. 2(ka), himself after the revenue sale and need not be considered. The other was taken by Defendant No. 2 who died during the pendency of the suit and on whose death Defendants 2(ka) and 2(kha) were substituted in his place as his son and widow respectively. 2. The common defence of the Defendants was that the disputed plots did not at all appertain to the tenure purchased by the Plaintiff and, secondly, that assuming they did, the interests of the Defendants were protected under sec. 12 of the Second Revenue Sales Act (VII of 1868). 3. There was a local investigation in the case at which it was found that the lands in question appertained to Maghi Survey plots Nos. 12 of the Second Revenue Sales Act (VII of 1868). 3. There was a local investigation in the case at which it was found that the lands in question appertained to Maghi Survey plots Nos. 3326, 3327, 3328 and 3329. It was also found that so far as C.S. plots were concerned, a portion fell within C.S. plot No. 355. 4. The trial Court rejected all the defences and decreed the Plaintiff's suit in full except as against certain Defendants who were found to have no interest in the lands. On appeal by Defendants Nos. 1, 2(ka) and 11(ka) the learned Subordinate Judge modified the trial Court's decree and held that so far as the lands appertained to Maghi Survey plots 3326 and 3328, the Government had no right to include them in Noabad Ijara No. 13 and the Plaintiff had acquired no title to them by his purchase of the Ijara. He held further that while the interest of Defendants Nos. 1 and 11(ka), was not protected, the interests of Defendants Nos. 2(ka) and 12 were, as respects those portions of the lands of their tenancies on which they had permanent dwelling houses. In the result, the learned Judge dismissed the suit with respect to that portion of the lands which fell under Maghi Survey plots 3326 and 3328 and decreed it with respect to the portion falling under Maghi Survey plots 3327 and 3329, subject to the rights of Defendants Nos. 2(ka) and 12 as declared by him, and he directed the exact sites of the structures to be determined in the course of execution. 5. It is to be observed that although Defendant No. 12 had not appealed, the learned Judge modified the decree in her favour as well, presumably under Or. 41, r. 4 or r. 33 of the Civil Procedure Code. 6. Against the decision of the learned Judge, the Plaintiff has preferred S.A. No. 486 of 1942. His contention is that the learned Judge was wrong in holding that Maghi Survey plots 3326 and 3328 could not legally be included in the Ijara and had not passed by the sale and also in holding that as respects the sites of their dwelling houses, Defendants Nos. 2 (Ka) and 12 had a protected interest. 7. S.A. No. 471 of 1942 is by Defendants Nos. 1 and 11(ka). 2 (Ka) and 12 had a protected interest. 7. S.A. No. 471 of 1942 is by Defendants Nos. 1 and 11(ka). Their contention is that the raiyati interest held by them is protected under Exceptions Thirdly and Fourthly to sec. 12 of Act VII of 1868, if not under the main provisions of that section, and that it is also protected under sec. 14. A further contention is that Exception Fourthly would protect the tenancy itself and therefore the whole of the lands of the tenancy and not merely the sites of the permanent structures. 8. S.A. No. 487 of 1942 has been preferred by Defendant No. 2(ka). His contention is that he too is protected under Exceptions Thirdly and Fourthly to sec. 12, if not under the main provision of the section, as well as under sec. 14, and that he can remain on the land in his own right, whether the superior interest of Defendants Nos. 1 and 11(ka) is avoided or survives. A further contention is that the protection given to him by the lower Appellate Court ought not to have been limited to the sites of the structures, but should have been extended to the whole of his tenancy or at least to an area reasonably necessary for the enjoyment of his dwelling house. 9. Before dealing with these questions which relate to the merits, it is necessary to dispose of a preliminary point taken by Dr. Sen Gupta on behalf of Defendant No. 2(ka) as to the competency of the suit. He contended that the plaint did not aver that the sub-tenures had been annulled, nor that the Plaintiff repudiated them; and the suit, framed as a suit for possession against trespassers, was not maintainable. This contention is plainly without substance. It is true that a purchaser at a revenue sale cannot eject persons found on the land unless he first annuls the tenure on the basis of which or under which they are there. But, as was pointed out by the Judicial Committee in the case of Turner Morrison & Co. Ltd. v. Monmohan Chowdhury 36 C.W.N. 29 (1931), The purchaser could, no doubt, sue for possession of the holdings, joining both the talukdar and the talukdar's tenants. But, as was pointed out by the Judicial Committee in the case of Turner Morrison & Co. Ltd. v. Monmohan Chowdhury 36 C.W.N. 29 (1931), The purchaser could, no doubt, sue for possession of the holdings, joining both the talukdar and the talukdar's tenants. The institution of such a suit would be an effective election to annul the taluk and the joinder of persons in actual possession would be be accordance with the ordinary procedure. 10. The present suit is exactly of the nature suggested by the Judicial Committee. The suit is one for possession and persons holding immediately under the tenure sold and persons holding under them have all been joined. Their Lordships' observations were made in connection with Act XI of 1859, but Act VII of 1868 is a part of that Act and the position under sec. 37 of the former Act and sec. 12 of the latter is precisely the same. The objection raised as to the form of the suit is therefore entirely groundless. 11. Reverting now to the appeals, it will be convenient to deal first with the Plaintiff's appeal, so far as it concerns the limits of the Noabad Ijara. The facts bearing on that question are as follows: Though there is no definite evidence on the point, the Ijara appears to have been created in favour of Kanta Prasad Hazra about the year 1898 when first or fresh settlements were granted in respect of all Noabad lands in Chittagong on the conclusion of the survey by Mr. Allen. There is no question that the Ijara in fact included the lands represented by the Maghi Survey plots 3326 and 3328. The term of the Ijara must have been 30 years, for all settlements of Noabad lands made in 1898 or thereabout were for that period. During the next survey and settlement of the district, which was by Mr. Kindersley and was commenced when the terms of the settlements of 1898 were drawing to a close, the Ijara was re-settled on the 1st of April, 1932 for a period of 30 years with certain Hazaris, probably heirs of Kanta Prasad. Again, there is no question that the Ijara, as re-settled in 1932, included Maghi Survey plots 3326 and 3328. Kindersley and was commenced when the terms of the settlements of 1898 were drawing to a close, the Ijara was re-settled on the 1st of April, 1932 for a period of 30 years with certain Hazaris, probably heirs of Kanta Prasad. Again, there is no question that the Ijara, as re-settled in 1932, included Maghi Survey plots 3326 and 3328. It was this Ijara which the Plaintiff purchased at a revenue sale on the 9th November, 1937 and prima facie there is no ground for saying that though he purchased the Ijara as constituted in 1932, he did not acquire title to Maghi Survey plots 3326 and 3328, actually comprised in the Ijara. The Cadastral Survey Khatian of 1898 and the Revisional Survey Khatian of 1932 both record the plots as appertaining to Ijara Kanta Prasad Hazra. But the Defendants point to the entries regarding these plots contained in the Maghi Chitta. There, against Plots No. 3336 occurs the entry, "Mahal Noabad, Zemindar Company Bahadur, Taraf Joy Narain Ghosal"; and against Plot No. 3328, the entry "Mahal Lakheraj Bahali Jimma Pir Mahammad. 12. It is not the learned Judge's finding that the plots were not included in the Ijaras of 1898 and 1932. What he has held is that the Government had no right to include them. The Maghi Chitta, he says, cannot be "lightly treated"; and since that Chitta shows the plots as appertaining to other tenures, one a Bahali Mahal and the other a Noabad, and since it has not been shown that those tenures had ceased to exist, the Government's right to include the plots in the present Noabad Ijara has not been established. The entries in the C.S. and B.S. records, he adds, are not sufficient to establish such right. 13. The date of the Maghi Chitta was given to us as 1838, but we think the real date of the extract filed in this case may be any date between that year and the year 1848. As is well known, the survey, which has come to be known as the Maghi Survey, was undertaken with the particular object of marking off the 3501 drones of land decreed to the heirs of Joy Narain Ghosal by the Sudder Dewany Adawlat in 1815 and the general object of carrying out a survey and settlement of the whole district. Commended in 1835 by Mr. Commended in 1835 by Mr. Harvey who could complete the operations only in Thana Ramoo, it was completed by Sir Henry Ricketts in 1848 under a further resolution of the Government, dated the 14th February, 1841. The proceedings were held under Regulation VII of 1822 and by virtue of the provisions of sec. 9 of that Regulation, the chitta prepared at the time is certainly evidence of title, as was contended on behalf of Defendant No, 2(ka) and as was held by this Court in Krishno Chander Goopto v. Meer Sufdur Ali 22 W.R. 326 (1874). 14. In our opinion, however, it is entirely fallacious to suppose that because the Maghi Chitta, prepared somewhen between 1838 and 1848, shows the plots as then appertaining to other Mahals, it is proved that the Government had, no right to include them in the present Ijara in 1898 or 1932. One of the plots is shown as appertaining to "Mahal Noahad, Zemindar Company Bahadur, Taraf Joy Narain Ghosal". Since the East India Company is recorded as the Zemindar, it is clear that the Mahal is not an estate, but a tenure. What is more important is that the tenure is a Noabad Mahal. Mr. Gupta, who appeared on behalf of the Plaintiff, referred us to the decision in Nagendra Chandra De v. Harkumar De 56 C.L.J. 4 (1932) where it is stated that "Noabad Taluks are not permanently settled but are in reality temporarily settled estates." His point was that since Noabad Mahals were" only settled for a term, the Government would have every right to re-settle plot No. 3336 as a part of another Noabad after the term of the Noabad, mentioned in the Chitta, had expired. The statement contained in the case cited is, however, not universally correct. Although Noabad Mahals are, as a rule, temporarily settled estates, not all of them are so (See Maqbul Ahmed v. Hara Gobinda Kalal 8 C.L.J. 470 (1906) Ashraf Ali v. Karam Ali 23 C.W.N. 1025 (1918) and apart from the fact of there being exceptions, at least one "Mahal Noabad Taraf Joy Karain Ghosal" has a history of its own, which will be found set out in the elaborate judgments in Prasunno Kumar Roy v. The Secretary of State for India 3 C.W.N. 695 (1890), and Ram Sundar Saha v. The Secretary of State for India 11 C.W.N. 928 (1907). As will appear from the judgment in the latter case, the Mahal is not an estate, for no property can be a Noabad and a Taraf at the same time. It is a Noabad Mahal, constituted of the land decreed to the heirs of Joy Narain Ghosal and settled with them after the lands had been ascertained by the Surveys of Mr. Harvey and Sir Henry Ricketts, the somewhat curious name being accounted for by the fact that the Noabad Mahal was annexed to the permanently settled estate (Taraf) of Joy Narain Ghosal, without being consolidated with it. But although it was a Noabad Mahal, the demise by the Government was permanent (see p. 936 of the report), only the revenue being liable to re-assessment, Dr. Sen Gupta referred us to the case in Ram Sundar Saha 11 C.W.N. 928 (1907) and probably intended to suggest that M.S. Plot No. 3326 being a part of the permanently demised Mahal Noabad Taraf Joy Narain Ghosal, could not be settled again as a part of the present Noabad. But he overlooked the fact that this particular Mahal Noabad Taraf Joy Narain Ghosal was created in 1852 and the reference contained in the Chitta, which was prepared between 1838 and 1848 could not be to this Mahal. There was another Mahal Noabad Taraf Joy Narain Ghosal, comprising a very small area, which is referred to in the case in Prasunno Kumar Roy 3 C.W.N. 695 (1890) (see p. 707 of the report), and which is mentioned even in the measurement papers of 1764. Since the Ghosals held an extensive tract of land, there must almost certainly have been other Mahals, similarly described, and the reference contained in the Chitta must be to one or other of these earlier Noabad Mabals There is nothing to show that these Mahals did not bear the ordinary incidents of Noabad tenures, viz., that the lands were liable to be re-settled after the expiry of the current term. Besides, the confusion which prevailed as to the lands of the Ghosals between 1800 and 1835 when the Maghi Survey was commenced is a well-known fact. It is also well known that the survey of 1835-38 was not accepted as correct during Allen's Survey of 1892-98 and the records prepared at the latter survey do not always record the same lands as appertaining to an estate or tenure. 15. It is also well known that the survey of 1835-38 was not accepted as correct during Allen's Survey of 1892-98 and the records prepared at the latter survey do not always record the same lands as appertaining to an estate or tenure. 15. As regards Plot No. 3328, the entry in the Maghi Chitta is that it appertains to Mahal Lakheraj Bahali . . . Jimma Pir Mahammad. "Jimma" is a kind of tenure and "Bahali" means "re-instated", "re-established" or "restored to possessions or privileges of which one had been deprived." (See Wilson's Glossary). The tenure referred to in the entry thus appears to be one created in accordance with the fourth of the instructions issued to Mr. Harvey and Sir Henry Ricketts which was "to ascertain and define all rent-free holdings, valid and invalid, and to resume the latter and settle them with the occupant Lakhirajdars under the rules in force." There is no reason in law to think that such a tenure could not come to an end and, indeed, the settlements of resumed Lakhirajes were temporary. 16. In the above state of facts, we are of opinion that merely by showing that the Maghi Chitta of 1838 or 1848 records the two plots as appertaining respectively to another Noabad and a Bahali mahal, the Defendants do not show that the Government had no right to settle them as parts of Ijara Kanta Prasad Hazra in 1898 or 1932. It is not necessary for us to hold that the Maghi Chitta is wrong. Each record must be presumed to be correct at its date; and since the position, indicated by the entries in the chitta could, during the interval, well change into the position indicated by the entries in the Cadastral and Revisional Survey records, the latter position is not shown to be impossible or invalid in law, as the learned Subordinate Judge erroneously supposed. He relies on no other reason in support of his finding; and the finding, in our opinion, must be held to be wholly wrong. 17. As to the proper inference from a conflict between entries in records of different dates, reference may be made to Bhupendra Krishna v. Abdur Rahaman 61 C.L.J. 18 (1934), Raghunath Musra v. Ram Behera ILR I Pat. 167 (1921) and Tengarco v. Chathu ILR 9 Pat. 347 (1920). 18. 17. As to the proper inference from a conflict between entries in records of different dates, reference may be made to Bhupendra Krishna v. Abdur Rahaman 61 C.L.J. 18 (1934), Raghunath Musra v. Ram Behera ILR I Pat. 167 (1921) and Tengarco v. Chathu ILR 9 Pat. 347 (1920). 18. The learned Subordinate Judge has entirely ignored the fact that not only were the two plots in question in fact settled as parts of the present Noabad about the year 1898 and have since been held as such by successive Ijaradars, but the Defendants also and their predecessors-in-interest have treated the plots as appertaining to this Noabad and acted on that footing. The rent receipts, Exhibit D series, show that the entire rent for Defendant No. 1's raiyati, which includes these plots, was paid by the original tenant to Kanta Prasad Hazra as the holder of this Noabad. The holding was purchased by Defendant No. 1's brother, from whom Defendant No. 1 inherited it. He too paid the whole rent to the heirs of Kanta Prasad. In the numerous documents executed by or in favour of the holders of the raiyati interest, the plots are always referred to as appertaining to Noabad Ijara Kanta Prosad Hazra. It is sufficient to refer to two of them, Ex. B (1) which binds Defendants Nos. 1 and 11(ka), and Exhibit C (1) which binds Defendant No. 1 and Defendant No. 2 (ka). The former is a document by which Defendant No. 1 transferred the raiyati holding to his wife, Defendant No. 11, from whom Defendant No. 11 (ka) has since inherited it. It mentions all the plots of the present suit and describes them as appertaining to Noabad Ijara Kanta Prosad Hazra. The latter is a document by which Defendant No. 1 granted a sub-tenancy of some of the plots to Defendant No. 2, the predecessor-in-interest of Defendant No. 2 (ka), and there too the plots demised are described as appertaining to this Noabad. In the circumstances it is clearly not open to the Defendants to deny the title of the Plaintiff to M.S. Plots 3326 and 3328 on the footing that they were wrongly included in the Ijara. The finding of the learned Subordinate Judge must accordingly be set aside and the title of the Plaintiff declared in M.S. Plots 3326 and 3328 as well. 19. On behalf of Defendants Nos. The finding of the learned Subordinate Judge must accordingly be set aside and the title of the Plaintiff declared in M.S. Plots 3326 and 3328 as well. 19. On behalf of Defendants Nos. 1 and 11 (ka), it was contended with a certain amount of vehemence that the finding of the learned Judge was a finding of fact with which we had no right to interfere in second appeal. The contention is not tenable. There is no finding of fact in the present case. The learned Judge has not found that the plots are not covered by the Ijara, but only that the Government had no right to include them therein. Besides, even if the matter found be a fact, a finding based on an erroneous principle of law and arrived at in disregard of material evidence is not a finding, immune from interference in second appeal. 20. The remaining point in the Plaintiff's appeal bears upon the subject-matter of the appeal by Defendant No. 2 (ka), a subtenant. But before reaching that stage, it is necessary to dispose of the appeal (S.A. No. 471 of 1942) by Defendants Nos. 1 and 11 (ka) who are tenants, holding immediately under the tenure. Defendant No. 1, it may be re-called, has no subsisting interest, having parted with the tenancy in favour of his wife, since deceased, on the 12th January, 1940, before the institution of the suit. 21. The question in this appeal is whether the interest of Defendant No. 11 (ka) is a protected interest. It was sought to be supported on a large number of grounds, but some of them can be disposed of at once. The interest is clearly not protected under sec. 14 of Art VII of 1868, for having regard to the decision of the Privy Council in Turner Morrison & Co., Ltd. v. Momnohan Chowdhury 36 C.W.N. 29 (1931) the word "raiyat," occurring in the section, must mean a cultivating raiyat which Defendant No. 11 (ka) is not. Nor was Defendant No. 1 a cultivating raiyat at the time of the revenue sale, when he was the tenant. As regards the fourth exception to sec. 12, the Courts below have found concurrently that there is no garden on the lands and that Defendants Nos. 1 and 11 (ka) have no structures there. Nor was Defendant No. 1 a cultivating raiyat at the time of the revenue sale, when he was the tenant. As regards the fourth exception to sec. 12, the Courts below have found concurrently that there is no garden on the lands and that Defendants Nos. 1 and 11 (ka) have no structures there. The claim to protection on the basis of the tank has been negatived on the ground that it has been in existence from before the creation of the raiyati tenancy. Authority for that view can be found in the decision in Sreemati Akiyannessa v. Abdul Gani 41 I.C. 1 (1917) which, in our opinion takes the correct view of the fourth exception, rather than the decision in Peary Mohun Choudhury v. Rasik Chandra Dhubi 58 I.C. 543 (1920) where it has been held that in order that the protection of the clause may be available, it is not necessary that the tank should have been excavated by the tenant claiming the protection of his predecessors. It is interesting to note that Fletcher, J., was a party to both the decisions. The latter decision was given in an appeal from a judgment of Newbould, J., [Rashik Ch. v. Peary Mohan 58 I.C. 287 (1920)], where it was held, in our opinion rightly, that though it was not necessary that the tenant should himself have excavated the tank, it was necessary that the tank did not exist before the creation of the tenancy. The fourth exception gives protection to "tenures of lands whereon dwelling-houses ... or other permanent buildings have been erected or whereon permanent gardens, tanks, canals, have been made" and the language used, in our opinion, clearly contemplates buildings, etc., erected and tank, etc., made, by the grantee of the tenure. The object of the exception, as has so often been pointed out, is to encourage improvement of the lands by tenants by offering them protection against revenue sales. We can find no reason to hold and nothing in the section which suggests that the exception extends to tenants who made no improvements themselves, but took a lease with tanks or buildings already existing. 22. There remains the main provision of sec. 12 and Exception Thirdly under which also protection was claimed. The main provision reads as follows: The purchaser of any tenure sold under the provisions of sec. 22. There remains the main provision of sec. 12 and Exception Thirdly under which also protection was claimed. The main provision reads as follows: The purchaser of any tenure sold under the provisions of sec. 11 of this Act shall acquire it free from all incumbrances which may have been imposed upon it after its creation, or after the time of settlement, whichever may have last occurred, and shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants, with the following exceptions :-- The first and the second exceptions speak of tenures existing at the time of the permanent settlement and held since then at fixed and variable rents respectively. 23. It was contended that since the tenancy, now held by Defendant No. 11 (ka), was created not after the creation of the Noabad Ijara but before, at any rate not after the last settlement of the Ijara in 1932, the Plaintiff, as the purchaser of the Ijara, had no right to annul it. 24. The contention was noticed by the learned Subordinate Judge, but not dealt with by him. After mentioning it, he observes: This brings us to the 3rd exception of sec. 12 of Act VII of 1868. 25. Obviously, the learned Judge failed entirely to appreciate that the present contention was based on the opening paragraph of sec. 12 and the question raised by it was entirely different from the question arising under the third exception. The learned Munsif dealt with the contention and repelled it on the somewhat extraordinary ground that since on the expiry of the term of a Noabad settlement, all uncultivated lands reverted to the Government absolutely, the Defendants had no tenancy right at all which they could plead against the Government. It is clear that the learned Munsif was making a confusion between the rights of the Government on the expiry of a Noabad settlement and the rights of a purchaser of a Noabad taluk at a revenue sale. The contention raised by the Defendants is thus not disposed of by the finding of either Court. 26. But the contention, in our opinion, is not tenable. The history of the tenancy has been given in detail in the judgments of the Courts below and it has at least been made out that the tenancy existed before the settlement of 1932. 26. But the contention, in our opinion, is not tenable. The history of the tenancy has been given in detail in the judgments of the Courts below and it has at least been made out that the tenancy existed before the settlement of 1932. But the contention of the Defendants is based on the mistaken assumption that under sec. 12 of Act VII of 1868, the qualification contained in the words "which may have been imposed under it after its creation, or after the time of settlement, whichever may have last occurred" applies equally to encumbrances and under-tenures. Had such been the case, all under-tenures created before the last settlement would be protected under the main section itself and there could be no meaning in specifically excepting tenures existing at the time of the permanent settlement, as has been done by Exceptions First and Secondly. As the Privy Council pointed out in Turner Morrison's case 30 C.W.N. 29 (1931) in connection with sec. 37 of Act XI of 1859 which is identically expressed, under-tenures, in the view of the section, are a class of interests distinct from encumbrances. The latter are extinguished automatically upon a revenue] sale of the estate or tenure, while the former have to be annulled. The exceptions mentioned in the section are exceptions, not to encumbrances but to annullable under-tenures. It appears to us clear that the words "which have been imposed after its creation, or after the time of settlement, whichever may have last occurred" have reference only to encumbrances and encumbrances falling outside the description constitute exceptions to encumbrances which are extinguished upon a revenue sale. As regards under-tenures, exceptions are only those which come under one or other of the four exception clauses. Sec. 14, which protects raiyati interests of a certain class, constitutes a kind of exception to both. The interest of Defendant No. 11 (ka) not being an encumbrance but an under-tenure,, the limitation contained in the opening paragraph of sec. 12 is of no assistance to him and he gains nothing by showing that the tenancy now held by him existed before the creation of the Ijara or at least before its last settlement in 1932. 27. The interest of Defendant No. 11 (ka) not being an encumbrance but an under-tenure,, the limitation contained in the opening paragraph of sec. 12 is of no assistance to him and he gains nothing by showing that the tenancy now held by him existed before the creation of the Ijara or at least before its last settlement in 1932. 27. As regards Exception Thirdly, both Courts have found that Defendant No. 11 (ka) was not entitled to its benefit in as much the tenancy was not, in their opinion, recognised by the settlement proceedings of 1932. The Exception reads as follows: Thirdly--Tenures created on recognised by the settlement proceedings of any current temporary settlement as tenures bearing a rent which is fixed for the period of such settlement. 28. The facts found are that in the settlement records of 1898, one Amirjan Bibi was recorded as the tenant in respect of these lands under the Ijara held by the Hazaris, paying a rent of annas 10 per annum. The interest recorded was that of a settled raiyat. On the 23rd January, 1901, Amirjan sold the raiyati to one Upendra, a brother of Defendant No. 1, from whom the latter inherited it. In the settlement records of 1932, Defendant No. 1 is recorded as a dakhalkar under the Hazaris with whom the Ijara was then resettled and the rent payable is recorded as the same 10 annas. In the remarks column occurs the entry: "No new jama is being fixed for this interest." 29. The Courts below have observed that the record, which describes Defendant No. 1 only as the person in possession, does not recognise his tenancy; and, it merely records the existing rent without recognising it in any way as the rent fixed for the period of the settlement. The trial Court adds that there is nothing to show that the interest is transferable, as a "tenure" under the definition given in Act VII of. 1868, must be and the lower Appellate Court adds that the tenancy having become a non-agricultural one, the settlement authorities could not possibly change the rent under Regulation VII of 1822, as would appear from paragraph 120 of the final report on the survey and settlement operations in the District of Chittagong, 1923-1933. 30. 1868, must be and the lower Appellate Court adds that the tenancy having become a non-agricultural one, the settlement authorities could not possibly change the rent under Regulation VII of 1822, as would appear from paragraph 120 of the final report on the survey and settlement operations in the District of Chittagong, 1923-1933. 30. The argument presented to us on this question was of a general character, but having referred for ourselves to the final report of the settlement operations, we have reached the conclusion that the finding of the Courts below is not correct. The word "dakhalkar" does not necessarily exclude a tenancy and the word may be used to describe a tenant of a non-agricultural tenancy who cannot be brought under any of the specific categories mentioned in sec. 4 of the Bengal Tenancy Act, but who is a tenant nevertheless. [See Rathindra Narayan Das v. Rai Gunendra Krishna Roy Bahadur 48 C.W.N. 158 (1918)]. In view of the finding of the Courts below that the tenancy has become a non-agricultural one, we are of opinion that it cannot be said that the record does not recognise the tenancy, merely because the word "dakhalkar" has been used. On the other hand, the entry that a sum of 10 annas is payable as "rent," clearly suggests that the tenancy is recognised. As regards the rent borne by the tenancy. Exception Thirdly does not require that the settlement authorities should fix the rent, but only that the tenancy should be "recognised ... as bearing a rent which is fixed for the period of the settlement." It is true, as was contended by Mr. Gupta and as was held in the case of Lakshidhar Barua v. Saroda Charan Dey 20 C.L.J. 40 (1914) recognition does not merely imply the record of a fact found to exist, but involves the notion of either acquiescence in or sanction of a fact found to exist. But here the record mentions the existing rent and adds that no new rent is being fixed. In our opinion, the second entry clearly implies that the existing rent was being accepted and left as it was and thus recognised as the rent payable by the tenant during the period of the settlement. But here the record mentions the existing rent and adds that no new rent is being fixed. In our opinion, the second entry clearly implies that the existing rent was being accepted and left as it was and thus recognised as the rent payable by the tenant during the period of the settlement. The observation of the learned Judge that the second entry merely reflects the inability of the settlement authorities to fix a rent is apparently based on the following pass age in paragraph 120 of the Final Settlement Report to which he refers: All original raiyati jotes, which have entirely lost their agricultural character, have been left out of the present assessment. Rents of these jotes cannot be enhanced by Regulation VII of 1822 as the amount payable to Government is rent. 31. It is clear that the learned Judge misunderstood this passage. Since it speaks of the amount "payable to Government," the reference is not to jotes held under tenure-holders, but jotes held directly under the Government. The passage which really bears on the present case comes afterwards and reads as follows: The noabad taluks which have lost entirely their agricultural character have been assessed as 'Sadar Malguzar' under Regulation VII of 1822. The method of their assessment in that the nijdakhal lands have been assessed on the capital value of such lands and then the realisation of the tenants has been taken Into account to make up the total assets of the taluk. . . It may be noted here that the rents of the tenants under these taluks have been left unaltered. 32. The last sentence in the passage above quoted furnishes the key to the action of the settlement authorities in not fixing any new rent for the tenancy. The khatian of the Ijaradars, the Hazaris, shows that the tenure was assessed in their hands as a khas mahal sadar and it is clear that the existing rents realised by them in respect of the tenanted lands were left unaltered and taken into account in computing the assets of the taluk. In other words, the existing rents were recognised as fixed for the period of the settlement. 33. In other words, the existing rents were recognised as fixed for the period of the settlement. 33. As regards the learned Munsif's point that the tenancy is not transferable, it need only be pointed out that if the tenancy is an occupancy holding, it was transferable in 1932 and if it is governed by the Transfer of Property Act, then too it is transferable. As a matter of fact, it has been transferred at least twice. 34. For the reasons given above, the tenancy of Defendant No. 11 (ka) falls, in our opinion, under Exception Thirdly and is accordingly protected from annulment. In the case of Aparna Charan Mahajan v. Elahibux 51 C.W.N. 292 (1946) to which one of us was a party what was really held was that an occupancy raiyati held under the Government did not come under Exception Thirdly to sec. 12 and was not an under-tenure but a tenure. That decision has no application to an occupancy holding held immediately under the tenure sold. It may be that when an occupancy raiyati is held either directly under the Government, or not immediately under the tenure sold but under a under-tenure-holder, it does not come under Exception Thirdly; but a raiyati held immediately under the tenure sold does fall under it and has been so regarded in numerous cases. The scheme of sec. 12, read with sec. 14, appears to be that the purchaser has first to annul under-tenures and thereupon he can eject all under-tenants, i.e., persons holding under the under-tenure annulled or other under-tenures held under that under-tenure. But if a person is a raiyat of the kind contemplated by sec. 14, he cannot be ejected. If, however, the raiyati is held immediately under the under-tenure annulled, it comes also under Exception Thirdly, if it does not come exclusively there. 35. The view we take in S.A. No. 471 of 1942 makes it unnecessary to deal separately with S.A. No. 487 of 1942, preferred by Defendant No. 2 (ka). Had it been necessary to deal with that appeal, certain extremely interesting questions would have to be considered, viz., whether a sub-tenant could claim protection under sec. 12 in his own right and whether the word "tenure" in Exception Fourthly bears the same meaning as the word "lease" in the fourth exception to sec. 37 of Act XI of 1859 so as to include sub-tenancies. 12 in his own right and whether the word "tenure" in Exception Fourthly bears the same meaning as the word "lease" in the fourth exception to sec. 37 of Act XI of 1859 so as to include sub-tenancies. It is, however, unnecessary to go into those questions. So long as the interest of the tenant, Defendant No. 11 (ka), subsists, the sub-tenant, Defendant No. 2 (ka), is shielded by the tenancy above him and the Plaintiff cannot overstep the tenancy and reach the sub-tenant at all. 36. In the result, S.A. No. 486 of 1942 is allowed in part. The judgment and the decree of the lower Appellate Court, in so far as they declare that the Plaintiff has no title to the lands represented by Maghi Survey Plots Nos. 3326 and 3328, are set aside and the corresponding parts of the judgment and the decree of the trial Court are restored. S.A. No. 471 of 1942 and S.A. No. 487 of 1942 are allowed in full. The rest of the judgments and decrees of both the Courts below are set aside and the Plaintiff's title to all the lands in suit being declared, his claim for recovery of possession against the Appellants is dismissed. The claim of khas possession is dismissed against the remaining Defendants as well, under Or. 41, rr. 4 and 33 of the Civil Procedure Code. We direct that each party will bear its own costs throughout. Ellis, J. I agree.