Roe, J.The land in suit in this case has been recorded in the finally published Record of Rights as being the bahasht of the plaintiff, who is a co sharer proprietor of the village. The case made out in the plaint was that it was not true bahasht land, but it was an old occupancy holding which had been acquired by the plaintiffs and for which they paid rent to their co-sharer maliks. The learned Munsif who tried the case came to the conclusion that there was nothing to show that the land had ever been an occupancy jote, and he appears to have accepted the evidence of two of the plaintiffs witnesses that the land was kamat land. The learned Subordinate Judge does not come to a finding upon this point. He describes the land simply as the bahasht land of the plaintiffs.

2. The position of the defendant is that he was inducted on to the land by the common manager of the whole body of landlords. He is himself a co-sharer proprietor, and it is the case common to both sides that he pays rent not to the whole body of landlords, but to those among them only who are the plaintiffs in this case. The learned Subordinate Judge found that his position is that of a non-occupancy raiyat who can be evicted upon service of notice as one who is holding on a lease from year to year, the suit being one for ejectment. The suit was decreed in the Appellate Court upon this ground, In the Court of first instance the suit was dismissed although, us it seems to me, if the learned Munsif was going to accept evidence that the land, was kamat land he should have accepted that evidence in its entirety and regarded the land as falling u/s 116. That, however, is immaterial to the present question. We may assume, for the purposes of the case, that the plaintiffs story, as given in the plaint, is the correct story, that he is a co-sharer proprietor and acquired these lands in the manner contemplated by Section 22 of the Bengal Tenancy Act; but he has also let out the land in the manner contemplated by Section 22 (2), and, that being so, the person to whom he has let out the land becomes a raiyat upon the land, and as a raiyat, whether he has a right of occupancy or not, he cannot be ejected except upon conditions prescribed in the Bengal Tenancy Act, none of which have been fulfilled. It is, however, contended by Mr. Kulwant Sahay that also sharer proprietor of a village is not a third person within the meaning of Section 22 (2). I for my own part fail to appreciate this distinction. It is a mere accident that the defendant in this case holds a small share in the village. He was inducted on to the land as a tenant and not as a proprietor, and as a person intending to cultivate the land with his own ploughs, to my mind he is a third person within the meaning of the section.

3. I would, therefore, decree this appeal and dismiss the plaintiffs suit with costs in all Courts.

Coutts, J.

4. I agree.