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17. It is plain on a comparison of the clause in the Bill as introduced with the section as finally enacted that the two differ on fundamental points, namely, first, the right of occupancy was recognised as attainable by all ryots including non-resident ryots; secondly, such right could be acquired by continuous cultivation for a period of twelve year; thirdly, the right, while in process of growth, was transmissible by inheritance; and fourthly, there was no distinction made between resident and non-resident cultivators in respect of the private lands of the proprietor. Whether the clause in its original form or the section in its final shape represented the pre existing law on the subject has been matter of controversy, and there has been a marked divergence of judicial opinion on the subject as will appear from an examination of the judgment of Sir Barnes Peacock, C.J., in Hills v. Ishore Ghose Marsh. 151 : W.R.F.B 48 : 1 Ind. Ind. Jur. (O.S.) 25 : 1 Hay. 350; Hills v. Ishore Ghose W.R.F.B 131 and Ishore Ghose v. Hills W.R.F.B. 148 and the judgments of Mr. justice Trevor in Thckoorance Dossee v. Bisheshur B.L.R. Sup Vol. 202 : 3 W.R. Act X Rul. 29 which was heard by the Full Court and overruled the decision in Hills v. Ishore Ghose W.R.F.B. 148. We are not now concerned with the question which was considered by the Full Court, namely, the liability to enhancement of the rent of an occupancy ryot. But the remarkable fact remains that although the question of the status of an occupancy ryot was considered by the Legislature in 1859, no attempt was made to give an exhaustive enumeration of the incidents of the tenancy and nothing was stated about transferability or even about habitability. The papers relating to the passing of Act X of 1859 as also those relating to the working of the Act were published by the Government of India in 1833. Amongst the numerous opinions recorded at the time by judicial and administrative officers as also by the Chief justice and Judges of this Court, no trace can be found of a discussion of the question of transferability, though there are casual suggestions for the "compulsory enfranchisement of the restricted tenure of occupancy ryots" by payment of a prescribed fee to the Zemindar. When we turn to the judicial decisions, we find an almost equal paucity of authorities on the question of the transferability of occupancy holdings. As will presently be seen, when ever the question was raised, the validity of the transfer was challenged by the landlord or by a person claiming as his representative, Tie rule enunciated by the Sudder Court as to involuntary alienations in 1834 and as to voluntary alienations in 1855 does hot appear to have been controverter in any reported decision. This is not a matter for surprise. Act X of 1859 made the status of an occupancy ryot more certain and less precarious than it was under the Regulations. Further protection was accorded to the ryot against various means of oppression to which Zemindars were accustomed to have recourse under Regulation VII of 1799, and although the ryot still continued liable to forfeit his Tenancy for non-payment of rent, he could not be ejected otherwise than in execution of a decree or order under the provisions of the Act (section 21) It is not necessary for our present purpose to attempt a complete enumeration of all the advantages conferred on the ryot by the Legislation of 1859; it is sufficient to state that the marked improvement in the status of the ryot steadily tended to weaken the theory, if it ever prevailed, that the right of occupancy was a purely personal right.

23. Section 23 of the Bengal Tenancy Act authorises an-occupancy ryot to use his land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy; the section further entitles him to out down trees, provided there is no local custom to the contrary. Sections 24 and 27 read together place the occupancy ryot in a position of distinct advantage so far as enhancement of rent is concerned; he is bound to pay rent only at fair and equitable rates, and, until the contrary is proved by the landlord, the rent actually paid must be deemed fair and equitable Section 28 makes the rent enhanceable only as provided in the Act ; Section 29 invalidates agreements for enhancement beyond a prescribed limit, while Sections 30 to 37 provide definite roles and restrictions when enhancement is claimed by suit, Section 25 affords protection from eviction, and this must be taken with Section 89 which prohibits ejectment except in execution of a decree and Section 155 which affords relief against forfeitures. Section 26 deals with the question of devolution of occupancy right on the death of the ryot and provides as follows: