Fazl Ali, J.This appeal arises out of a suit instituted by the appellant to eject the defendants first party from 351 bighas 9 kathas 13 dhurs of land situated in mauza, Narain Pipra appertaining to Narhan estate which belonged to the appellant. The lands are described in the plaint as kharhaur, that is to say lands upon which thatching grass grows wild and are recorded in khata No. 358 which consists of 501 bighas odd. The previous history of these lands, so far as it is disclosed in the evidence, may be briefly stated here. It appears that on 14th December 1893, 359 bighas odd of kharhaur land and 40 bighas of khudkasht lands were settled on behalf of the Narhan estate with two persons named Raja Choudhury and Bupan Mahto at an annual jama of Rs. 1204: vide kabuliyat Ex. 1. Meanwhile the lands of the estate were surveyed and the lessees were found to be in possession of a larger area than that recorded in the kabuliyat, Ex. 1. This mistake was rectified in the next kabuliyat Ex. 2 which was executed on 14th November 1898 by one Baehha Mistry in respect of 462 bighas of kharhaur land and 38 bighas odd of khudkasht land. The settlement under this kabuliyat and the kabuliyat, Ex. 1 were to last for a period of five years each. Between 31st December 1903 and 3rd March 1929, a number of settlements were made by the Narhan estate, each settlement being for a period of five years with slight variations in the annual jama.

2. The first of these settlements was made with Bachha Mistry alone [Ex. 2 (a)]; the second and the third with Baehha Mistry and Earn Prasad Mistry [Exs. 2 (b) and 2 (c)]; the fourth and fifth with Paglu Rai (ancestor of defendants 1 to 8) and Bachha Mistry [Exs. 3 and 3 (a)] and the sixth with Paglu Rai alone [Ex. 4]. In all these settlements it was stated that the.

proprietor was exclusively entitled to the land and on the expiry of the lease, the lessee or his heirs and representatives shall have no kasht right or any other right of possession and occupation in the lands

and further that the lessee

shall keep the kharhaur and the zirat lands in the same condition as at present and shall not alter the same by cultivating them and growing crops thereon.

3. In the kabuliyat which was executed by Bachha Mistry and Ram Prasad Mistry in 1909 [Ex. 2 (b)] it was further stated that "besides cutting the wild khar, the lessee shall have no right to the land" and this new proviso was repeated in all the subsequent kabuliyats.

4. On 17th May 1929 the manager of the Narhan estate invited bids for the settlement of 350 bighas, 17 kathas and 5 dhurs only out of khata No. 358 and this area was ultimately settled with Paglu Rai who offered an annual jama of Rs. 2262 for the period extending from 1st Jeth 1336 to 1st Baisakh 1337. The plaintiff has adduced evidence to prove that as Paglu Rai made the best offer, the lands were settled with him for one year and Paglu Rai accordingly executed a kabuliyat (Ex. 14) on 17th May 1929 agreeing to pay the above mentioned jama. Some difference however arose between Paglu Rai and the Narhan estate with the result that the Narhan estate settled these lands (350 bighas odd) with defendants second party for a period of three years on 15th July 1930. But the new lessees were unable to get possession and certain criminal cases which followed were decided against them. The plaintiff accordingly brought the present suit in which he asserts that after the expiry of the term stated in the kabuliyat executed by Paglu Rai on 17th May 1929 the defendants were not entitled to remain in possession of the land and are therefore liable to be ejected. The plaintiffs case further is that the defendants could not acquire occupancy right in the lands in suit, firstly because they are proprietors zirat and secondly, because none of the leases granted to the defendants was a cultivating lease. Defendants 1 to 8 who are the direct descendants of Paglu Rai alone contested the suit, their main defence being that the lands are not zirat and that they have ac. quired a right of occupancy therein. Their case also is that Baehha Mistry [the lessee under kabuliyats Exs. 2(b), 2(c) etc.] was their farzidar and that they have been in occupation of the land for a much larger period than 12 years before the institution of the suit.

5. The learned Subordinate Judge has accepted the defendants case except so far as it related to Bachha Mistry being their farzidar and dismissed the suit and the plaintiff has accordingly appealed. The main questions which arise in this appeal are (1) whether the disputed lands are proprietors private lands or zirat; and (2) whether the plaintiff ever inducted the defendants or their ancestor Paglu Rai as tenants on the land or in other words whether the leases granted to Paglu Rai or any of them can be regarded as a cultivating lease. So far as the first questions concerned, the plaintiff relies mainly on certain admissions made in the kabuliyats executed by Paglu Rai and the entry in the Record of Rights. The so-called admissions however are by no means clear and it is difficult to hold on the basis of the somewhat loose statements made in the kabuliyats that the lands are zirat. The passages in the kabuliyats which are relied upon are:

(1) The said lands exclusively belong to the proprietor, and

(2) We shall keep the kharhaur and zirat lands in the same condition as at present and shall not alter the same by cultivating and growing crops thereon.

6. The first statement is a very general one and might simply mean that the lands belonged to the lessor alone, and nobody else was entitled to settle them. As to the second statement I am not prepared to accept the suggestion made on behalf of the appellant that the expression "kharhaur and zirat" refers to the same land. Anyone who is familiar with the language in which the document is written will find it difficult to adopt this interpretation. In my opinion by "zirat land" in this passage is meant the khudkasht land and it was due to bad drafting that the passage which followed "shall not alter the same by cultivating," etc., was inserted there, though it was clearly intended, to refer only to kharhaur lands. What is really in favour of the appellant is that the entire lands in khata No. 358 are recorded as zirat, but I agree with the learned Subordinate Judge that the presumption arising from the record of rights has in the present case been rebutted. This point has been fully dealt with by the learned Subordinate Judge in his judgment and it is unnecessary for me to reproduce his arguments.

7. I agree with the learned Subordinate Judge that there is no evidence on the record to show that these lands were ever under cultivation before they were let out or that they were proprietors private land by local custom or that they were especially let out as proprietors private land before 2nd March 1883 as required by Sub-section (2) of Section 120, Ben. Ten. Act. The estate was under the management of the Court of Wards since 1877 and it is remarkable that no papers are forthcoming to show that these lands are pro. prietors zirat within the meaning of Sections 116 and 120, Ben. Ten. Act. The entry in the Record-of-Eights also is a curious one, because while on the one hand it records the lands as zirat, on the other hand, Raja Choudhury, who was in possession of them is recorded as having a non. occupancy right therein and a number of persons who held under him are shown as shikmidar tenants. As it is now well settled that no non-occupancy right can accrue in zirat land, the entries with regard to the character of the land and the status of the tenant are not consistent with each other.

8. The point, however, which the appellant has not been able to meet is that he has not stated any where in the plaint that the lands in question are zirat. This omission is notable because in the criminal litigation which preceded the institution of the suit the defendants had repeatedly asserted that they had acquired a right of occupancy in the disputed land. On the whole therefore I am inclined to agree with the learned Subordinate Judge that the appellant has failed to show that the disputed lands bear the character of zirat lands.

9. The next question is whether the leases by which Paglu Rai was inducted on the land were cultivating leases or merely documents enabling him to out and appropriate the thatching grass growing thereon. So far as the leases other than the lease executed on 17th May (Ex. 14) is concerned, it is distinctly stated in them that esides cutting the wild khar, the lessees shall have no right to the land." The learned Subordinate Judge is of the view that this statement was merely a device adopted by the landlord to prevent the right of occupancy accruing in the land. The reasoning of the learned Subordinate Judge in this connexion has been assailed before us as being highly speculative but it is substantiated to this extent that although each successive lease recites that the area of kharhaur land is 462 bighas and that of khudkasht land 38 bighas odd, yet the real faot seems to have been that the area of kharhaur land continued to diminish and the area of the culturable land continued to increase as time went by.

10. As early as in 1898, the area of culturable land was much more than 38 bighas odd as will appear from the settlement records and yet in all the kabuliyats which were executed between 1898 and 1929 the area of khudkasht land was stated to be only 38 bighas odd. It has been conceded on behalf of the appellant before us that by 1929 the area under cultivation had become 150 bighas. Thus, although the tenants who were inducted on the land by various leases were gradually bringing the kharhaur land under cultivation, yet the fiction that besides cutting the wild khar they had no right to alter the land or cultivate them was kept up by inserting a proviso to this effect in all the leases. The learned Subordinate Judge considers that this was deliberately done to prevent the right of occupancy, accruing and it appears to me that there is a good deal to be said for this view, especially as the lands being measured at the time of each fresh settlement, the proprietor must have been aware of the actual area of cultivated lands. However that may be, for the purpose of deciding this appeal it is not necessary for us to go beyond Ex. 14, that is to say the kabuliyat of 17th May 1929.

11. It must be noted that in this kabuliyat there is no clause similar to the clause in the earlier kabuliyats providing that "besides cutting the wild khar the lessee shall have no right to the land and that he will not cultivate the land or alter the same." The annual jama was raised from Rs. 1650 which was paid by Paglu Eai up till March 1929 for 501 bighas of land to Rs. 2262 which was payable for an area of 351 bighas. The kabuliyat purports to "be a lease of land" and the amount payable to the lessor is described as "annual jama" and it is stated that

I the lessee should, up till the term of the lease, remain in possession and occupation of the leasehold property and appropriate the produce thereof.

12. Upon the terms of the kabuliyat it is fairly clear that it created an interest in the land and not merely in the khar growing on it. If this is so, it is somewhat difficult to hold that this was not a cultivating lease merely because the lease does not state in so many words that the land was let out for cultivation. There is difference in law between a lease and a license and though generally speaking it is true that the thatching grass grows spontaneously, yet it was treated by the settlement officer who surveyed the disputed land as a form of crop and it has been held in this Court that in order to make the best use of this grass the tenant must have recourse to certain processes of cultivation. But even apart from this aspect of the case, it appears to me on the language of the lease itself that it was a cultivating lease and so the defendants who are admittedly settled raiyats of the village acquired an occupancy right in the lands in question u/s 21, Bihar Tenancy Act.

13. It was pointed out on behalf of the appellant that the contesting defendants had tried to repudiate the kabuliyat, Ex. 14. But the plaintiffs own case in para. 9 of the plaint is that Paglu took settlement of the land on 17th May 1929 and appropriated the khar from Jaith 1336 to Baisakh 1337. The evidence also shows that the plaintiff realized the entire rent for the year according to this kabuliyat Ex. 14. The defendants have also adduced, very little reliable evidence to support the allegations made by them in their written statement with regard to this kabuliyat and their advocate has frankly conceded before us that he could not support these allegations.

14. I would therefore dismiss the appeal, but having regard to all the circum. stances of the case, I would make no order as to costs.

Chatterji J.

I agree.