JUDGMENT 1. The defendant is the appellant before me. The appeal arises out of a suit for his eviction under section 48c of the Bengal Tenancy Act on the ground of the expiry of the term of his lease. The suit was instituted by the respondent claiming eviction, arrears of rent and manse profits. 2. The respondent's case was that the suit land belonged to him in occupancy right and that the appellant took settlement of it in korfa right by executing a meadi kabuliyat for nine years in 1349 B. S. The kabuliyat was executed and registered on 25th Chaitra 1348 B. S. and the rate of rent was fixed at Rs. 33/ - per annum. As the term of the kabuliyat expired on the last date of Chaitra 1357 B. S., the appellant had no right to remain in possession of the suit land after the expiry of that date. As the appellant did not give up possession of the suit land after the expiry of the period of his lease the respondent was entitled to recover khas possession of it by evicting the appellant there from. The respondent also gave a notice to the appellant by registered post. The respondent required the land for his own cultivation. He is also claiming rent for 1356 and 1357 B. S. The appellant in his written statement alleged that the suit land belonged to his father Rajendra Nath Ghose ; that after Rajendra's death it was inherited by the appellant and his two brothers Paresh and Basudev and their mother Pannabala ; and that as they were in possession of the suit land for a continuous period of more than 12 years they were not liable to be evicted. He denied that the respondent was ever in khas possession of the suit land and challenged the kabuliyat as fraudulent and void. He also stated that the kabuliyat was never acted upon. 3. The learned Munsif decreed the suit on a finding that the kabuliyat executed by the appellant was a genuine document and that he was liable to be evicted on the expiry of the lease as per kabuliyat. He also decreed the respondent's claim for rent and directed an enquiry under Order 20, rule 12 Civil Procedure Code for the ascertainment of mesne profits. 4. He also decreed the respondent's claim for rent and directed an enquiry under Order 20, rule 12 Civil Procedure Code for the ascertainment of mesne profits. 4. The appellant preferred an appeal to the lower appellate court from the aforesaid decision of the trial court and the lower appellate court dismissed the appeal. Thereupon the defendant preferred a second appeal to this court. It is contended before me that as the defendant had been in possession of the suit lands for more than 12 years he is not liable to be evicted under section 48c of the Bengal Tenancy Act. But it is the concurrent finding of both the courts below that he was mot in possession of the suit lands for a period of more than 12 years prior to the institution of the suit. 5. The finding of the lower appellate court that the kabuliyat executed by the defendant on the 25th Chaitra 1348 B. S. for 9 years from 1349 to 1357 is genuine and was acted upon has not been seriously disputed before me by the learned Advocate for the appellant. That the kabuliyat was acted upon will be evident from the evidence of the defendant himself that the plaintiff obtained two rent decrees against him. 6. It has however been seriously contended before me on behalf of the appellant that inspite of the execution of the aforesaid kabuliyat the defendant is not an under-raiyat and that, therefore, he is not liable to be evicted under section 48c of the Bengal Tenancy Act. It may be pointed out that this point was not taken by defendant in any of the courts below, nor has this point been taken in the grounds of appeal filed in this court. In my opinion the defendant is not entitled to raise this point for the first time before the High Court. But as this point has been argued at length the validity of the argument may be examined. In support of this argument i have been referred to the kabuliyat dated 25th Chaitra, 1348 corresponding to 8th April, 1942 (Ext. 1. In the recital of Ext. 1 the disputed lands have been described as appertaining to the "mourasi Mokrari Jamai" holding of the plaintiff. From this it is sought to be argued that status of the plaintiff is that of a raiyat holding at a fixed rate. 1. In the recital of Ext. 1 the disputed lands have been described as appertaining to the "mourasi Mokrari Jamai" holding of the plaintiff. From this it is sought to be argued that status of the plaintiff is that of a raiyat holding at a fixed rate. As the plaintiff relies upon this document, he is bound by this description of his status in the Kabuliyat. The next step in the argument is that the lease in favour of the defendant must have been made by the plaintiff under section 18 (1) (a) of the Bengal Tenancy Act which runs thus: "a raiyat holding at a rent, or rate of rent, fixed in perpetuity shall be subject to the same provisions with respect to the transfer of. . . . . . his holding as the holder of a permanent tenure. " The defendant, it is contended, is in the same position as a lessee under a permanent tenure-holder. In other words, just as a person holding immediately under a tenure-holder cannot be an under-raiyat, the defendant too in the present cast cannot be regarded as an under-raiyat. Therefore, the defendant is not liable to be evicted under section 48c of the Bengal Tenancy Act which deals with the ejectment of an under-raiyat. As the plaintiff seeks ejectment under section 48c of the said Act, the suit is liable to be dismissed, 7. I am not inclined to accept the above argument of the learned Advocate. According to section 4 of the Bengal Tenancy Act a tenant holding whether immediately or mediately under a raiyat is an under-raiyat. A raiyat holding at a rent or rate of rent, fixed in perpetuity is nevertheless a raiyat. In the matter of transfer including a lease, he may be subject to the same provisions as the holder of a permanent tenure, but from that it cannot be inferred that he himself is the holder of a permanent tenure. Section 18 (1) (a) of the Bengal Tenancy Act merely says that a raiyat holding at a rent, or rate of rent, fixed in perpetuity enjoys a wider power to transfer than, say, an occupancy raiyat. It does not say that such a raiyat is, or must be deemed to be, the holder of a permanent tenure. Subsection (2) of section 18 of the Bengal Tenancy Act lends support to my reasoning. It does not say that such a raiyat is, or must be deemed to be, the holder of a permanent tenure. Subsection (2) of section 18 of the Bengal Tenancy Act lends support to my reasoning. That subsection says that the provisions of sections 23a to 38 (both inclusive) shall not apply to raiyats holding at fixed rates, even though such raiyats have a right of occupancy in the lands of their holdings. It would not have been necessary to insert this sub-section if he were a tenure-holder. Moreover the land comprised in his tenancy has been described as a holding. In my opinion, on a correct interpretation of section 18, there is no scope for any argument that a raiyat holding at a fixed rate is nothing but a tenure-holder. 8. That being the position, the defendant holding under the plaintiff must be regarded as an under-raiyat. The learned Advocate for the appellant contends that even assuming that the defendant is an under-raiyat he is not an under-raiyat within the meaning of section 48c; but he has not been able to cite any authority in support of his contention. I am not prepared to accept this contention. I now propose to consider some of the decided cases on this point. The learned Advocate for the appellant has referred to the case of (1) Amar Chand Roy v. Prasanna Dasi, reported in 25 C. W. N. 9. He refers to the case for the purpose of showing that the word "transfer" in section 18 includes a lease. He suggests that even where a raiyat holding at a fixed rate grants a lease he does so as a tenure-holder and therefore the lessee cannot be regarded as an under-raiyat. In that case the plaintiff obtained a decree for arrears of rent against his raiyat holding at a fixed rate. The defendants were the successors in interest of a person to whom a permanent lease had been granted by the plaintiff's raiyat. The plaintiff after obtaining a decree for arrears of rent against his raiyat purchased the holding in execution of that decree, and thereafter instituted a suit for the eviction of the defendants. The suit was dismissed by the trial court but decreed by the lower appellate court. The plaintiff after obtaining a decree for arrears of rent against his raiyat purchased the holding in execution of that decree, and thereafter instituted a suit for the eviction of the defendants. The suit was dismissed by the trial court but decreed by the lower appellate court. Newbould, J. sitting singly restored the decision of the trial court and the decision of Newbould, J. was affirmed by Mookerjee, C. J. and Fletcher, J. in an appeal under the Letters Patent. As was pointed out by Mookerjee, C. J. the substantial question in controversy was whether the term 'transfer' in clause (a) of section 18 of the Bengal Tenancy Act includes a lease. The question was answered in the affirmative. It may be pointed out that the entire suit proceeded upon the footing that the defendants claiming through a person to whom a permanent lease had been granted by the plaintiff's outgoing raiyat holding at a fixed rate were under-raiyats. It was argued on behalf of the plaintiff that the defendants being under-raiyats the permanent right claimed by them was hit by section 85 of the Bengal Tenancy Act by which a raiyat was precluded from granting a sub-lease in perpetuity. In answer to this argument their Lordships observed that section 85 was controlled by section 18 and therefore a raiyat at fixed rate could grant a permanent lease, In my opinion this case is against the appellant as it proceeds upon the footing that a person holding under a raiyat at fixed rate is an under raiyat. Reference may also be made to the case of (2) Meher Ali v. Kalai Khalasi, 19 C. W. N. 1129. In this case it was argued on behalf of the defendant in a suit for eviction that his lessor being a raiyat at a fixed rate was competent to create a permanent heritable interest in favour of his grantee, although the latter was an under-raiyat. Their Lordships accepted this argument although the appeal by the defendant was dismissed because their Lordships found that the lessor was merely an occupancy raiyat. 9. Learned Advocate for the appellant seeing that the case reported in (1) 25 C. W. N. 9 may go against him says that after the repeal of section 85 and the insertion of the present sections 48 to 48c by the Bengal Tenancy (Amendment) Act, 1928, the position in law has changed. 9. Learned Advocate for the appellant seeing that the case reported in (1) 25 C. W. N. 9 may go against him says that after the repeal of section 85 and the insertion of the present sections 48 to 48c by the Bengal Tenancy (Amendment) Act, 1928, the position in law has changed. According to him under the existing law a person holding under a raiyat at a fixed rate cannot be regarded as an under-raiyat, at any rate, an under-raiyat within the meaning of section 48 (c) of the Bengal Tenancy Act. But he has not been able to cite any authority in support of his argument. I cannot persuade myself to accept this argument, 10. In conclusion I may add that the lower appellate court observes that "admittedly the plaintiff has occupancy right in the suit land and the status of the defendant is that of an under-raiyat". In my opinion on the pleadings the lower appellate court was justified in saying so. In paragraph one of the plaint it has been specifically stated that the suit land appertains to the plaintiff's occupancy holding and there is no denial of this averment in the written statement. In my opinion the description of the plaintiff's holding as that of a raiyati holding at a fixed rate in the kabuliyat executed by the defendant alone cannot operate as estoppel against the plaintiff nor has the learned Advocate for the appellant invoked the doctrine of estoppel. That the suit land is required by the plaintiff for his own cultivation has been found by both the courts below. In my opinion, there is no substance in the appeal, which is, therefore, dismissed with costs.