Sir Thomas Fredrick Dawson Miller, Kt., C.J.

1. I have had an opportunity of consulting with my learned brother in this case and I entirely agree with the judgment he is about to pronounce.

Jwala Prasad, J.

2. This appeal arises out of a suit brought by the plaintiffs for partition of their share in Mouzah Damodarpore, Chak Giasuddin, bearing Tauzi No. 4044. The said village is held by the plaintiffs and the defendants as follows:--The plaintiffs have a share of 2 annas odd, defendant No. 1, 1st party, 4 annas odd, defendants Nos. 2 to 12, 2nd party, 4 annas odd and defendants Nos. 13 to 31, 3rd party, the remaining share in the village. Defendant No. 32, 4th party, is a purchaser from defendant No. 12, one of the defendants Sind party. The share of the plaintiffs and defendants 2nd party, viz., 6 annas 11 Gandas 3 Kauris 1 Karant 17 Rains, 8 Paras in the village out of the entire 16 annas was leased to the defendant No. 1 under two separate leases executed jointly by the plaintiffs and defendants 2nd party in favour of defendant No. 1. The first lease was executed on the 15th June 1882 and was for a term of 9 years, 1290 to 1298. The second lease was executed on the 20th December 1896 and was for a term of 15 years, 1304 to 1318. In the interval, that is from 1299 to 1303, defendant No. 1 is said to have been in possession of the property under a verbal lease, as negotiation for the second lease executed on the 20th December 1896 was going on between the parties. The second lease expired in 1911. Yet the defendant No. 1 continued to be in possession of the property and refused to give up possession. The plaintiffs further alleged that while in possession of the said share of 6 annas odd leased to him the defendant No. 1 fraudulently got his name recorded as a non-occupancy Raiyat in respect of 45 Bighas 14 Cottas 7 Dhurs in Khatas Nos. 156 and 246 of the Survey Record of Rights finally published in the years 1889 and 1900, although the said lands belong to all the proprietors in the village as their Khas lands and defendant No. 1 has no Raiyati right in the said lands and was only a Thiccadar or farmer in respect of the share of six annas odd, the leasehold property.

3. On the above allegations the plaintiffs prayed for partition and separate possession of their own share in the village and for declaration that the defendant No. 1 has no right to remain in possession of the leasehold property after the expiry of the lease and that he has no Raiyati interest in respect of the specific 45 Bighas odd which belong exclusively to all the Maliks in the village.

4. There does not appear to be a serious contest with regard to the claim of the plaintiffs for partition and for recovery of possession of their share in the village leased to the defendant No. 1.

5. The real dispute relates to the specific lands of 45 Bighas odd referred to above recorded in Survey Khatas Nos. 156 and 246, Defendant No. 1 claims that the said lands were in his possession long prior to the leases referred to above, and that he has acquired a right of occupancy in the said lands. Defendant No. 1, therefore, resists the claim of the plaintiffs to have a partition of the said lands among the proprietors and to recover possession of their share in these lands. The Court below decreed the plaintiffs' suit, holding that defendant No. 1 has acquired no Raiyati right in the lands and that the plaintiffs are entitled to Khas possession of their share in the same. There is a further direction awarding mesne profits to the plaintiffs as claimed by them for the period of their dispossession. Defendant No. 1 has appealed to this Court.

6. The contention of the defendant that he was in possession of the lands as a tenant prior to the leases referred to above has no substance in it. The evidence on behalf of the defendant to prove his possession previous to the first lease of 1882 is wholly unreliable. It consists of the statement of two witnesses, both of whom are cultivators in the village. They say in their evidence recorded in 1917 that defendant No. 1 was in possession of the land for the last 30 to 35 years, that is, from or just a little before 1882 when the first lease was executed. It is neither alleged nor even disclosed in evidence as to how defendant No. 1 came to be in possession of the lands as a tenant before he took lease of the village. No settlement is alleged to have been made with him of the lands in suit by the proprietors of the village. No receipts in proof of payment of rent to any of the landlords are produced on his behalf. In short, there is absolutely no documentary evidence on his behalf to show that he acquired any tenancy right prior to the lease in the lands. On the other hand, the evidence on behalf of the plaintiffs is reliable and shows clearly that defendant No. 1 was not in possession of the lands previous to the leases in question. The learned Vakil appearing on behalf of the appellant has rightly refrained from relying upon the oral evidence on his side. He, however, relies upon the entries in the Survey Record of Rights (Exhibits B and C). Exhibit B shows that the Record of Rights was finally framed and published on the 17th April 1900, whereas Exhibit C shows that it was published on the 9th June 1899. The former recorded defendant No. 1 as Gair Dakhilkar (non-occupancy tenant) in respect of Khata No. 246 for 6 years and the latter as Gair Dakhilkar for 7 years in respect of Khata No. 156. It is said that the aforesaid entries show that defendant No. 1 was in possession of the lands as a non-occupancy tenant in or about the year 1892, that is, a year after the expiry of the first lease and 4 years prior to the execution of the second lease of 1896. In the first place, this falsifies the allegation of the defendant that he was in possession of the lands prior even to the first lease. In the second place, the fact that he was in possession after the expiry of the first lease and previous to the execution of the second lease goes only to show that he simply held over after the expiry of the first lease, as negotiations were going on between the parties for the execution of a fresh lease. There is positive evidence to the effect that defendant No. 1 held over and continued to be in possession after the expiry of the first lease on the same terms as those mentioned in the lease. The Court below has accepted this evidence. I agree with the Court below in its finding that in the interval between the expiry of the first lease and the execution of the second lease, the defendant No. 1 simply held over and was in possession of the lands as a lessee of the 6 annas odd share under the first lease of 1882. He, therefore, came to be in possession of the lands in suit on account of and under the lease executed by the plaintiffs and defendants 2nd party. The absence of rent receipts goes to show that defendant No. 1 was in possession under the lease and not independent of it.

7. As to the contention of the defendant that the presumption of the entry in the Record of Rights that he was in possession of the lands as a non-occupancy tenant should prevail, it is enough to state that the evidence and the circumstances of this case have fully rebutted the presumption, if any. The entry in the Record of Rights is simply an inference and opinion of the Assistant Settlement Officer as to the status of the defendant.

8. The next contention on behalf of defendant No. 1 is based on the terms of the lease in Question. It is said that he was given a lease for cultivating purposes, that he has been in possession of the lands for over 12 years and has thus acquired an occupancy right in them. The first lease of 1882 has not been produced, but it is agreed at the Bar that the terms of that lease were exactly similar to those of the lease of 1896 which is on the record. The lease executed by the plaintiffs and defendants 2nd party is printed at page 14 and the Kabuliyat or the counterpart of it executed by defendant No. 1, at page 8 of the paper-book. The terms of both are the same and the following is an extract from the lease at page 14:--

We (the plaintiffs and defendants 2nd partly) have given in lease to Mr. E.G. Stonewigg and Mr. John Stonewigg, Englishmen, by occupation indigo planters and proprietors, Managers and residents of Indigo Factory at Gungauli, (1) the entire and whole 6 annas, our ancestral share, and 11 Gandas 3 Kauris 1 Karant 17 Rains and 3 Paras, our purchased share, in all 6 annas 11 gandas 3 kauris 17 rows and 8 paras out of 16 annas of Mouzah Damodarpore, Chak Ghyasuddin, osli mai dakkli, together with Tolas and Badhs appertaining to the said Mouzah, Pergana Saraisa, bearing Tauzi No. 4022 (apparently a mistake for 4044) at an annual jama of Rs. 668-46(2) 3 Kauris 2 Karants 1 Dant and 5 Rains out of 4 Gandas 2 Kauris 2 Karants 2 Dants 17 Rains and 4 Paras, which covers an area of 8 Bighas 16 Cottahs and 3 Dhurs according to our quota, i.e., after excluding 4 Bighas 15 Cottahs and 12 Dhurs of land which is in our possession, the remaining area to the extent of 4 Bighas and 11 Dhurs at an annual Jama of Rs. 24-2-6 at the rate of Rs. 6 per Bigha situate in Mouzah Bhushan Tara, Pergannah Saraisa, Ijmali Patti Touzi No. 12759, Thana Dalsingh Serai, Division Samastipore, district Darbhanga, together with Malwajhat, Saer Wajhat, all grains, Jalbar, Bankar, Ahar, Pokhar, water, reservoir, tanks, Pucca and Kutcha wells, palms, and date trees, gardens of mangoes and jack trees, bamboo topes, fruit bearing and non fruit bearing trees, occupied and non-occupied houses of tenants, Mutharfa, Bardana, salt, Sayer and fishery rights, etc., in the Mahal, in other words, all the zamindari rights appertaining thereto (3) and 26 Bighas 13 Cottahs and 6 Dhurs, at Rs. 7 per Bigha and 6 Bighas 7 Cottahs and 12 Dhurs at the rate of Rs. 6 per Bigha, in all 33 Bighas and 18 Dhurs of the Zerait Khudkasht lands situated within our partitioned Pattis in Mouzah Bhushar Tara, Pergannah Saraisa aforesaid, at an annual Jama of Rs. 24-15-0 excepting the items of Barhmotar, Shibator, Neaz Dargah, Chanda of Chandadarans, which have been coming down from before, i.e., we have let out on lease the above shares on a consolidated, fixed and uniform annual Jama of Rs. 917-6-0 in Company's coin, half of which is Rs. 458-11-0, as including road and public works cess for a term of 15 years extending from 1304 to 1318. We have received Rs. 3,000 as Zerpeshgi bearing interest at the rate of 12 annas per cent per mensem and have appropriated the same. The said Saheb, the Thiccadar, should remain in possession and occupation of the leasehold property up to the end of the term, should make proper cultivation thereof at case of his mind or should get the same cultivated by others by solving indigo or any other crops according to his desire; and should enjoy the produce of the same. Having set off the principal amount of the Zerpeshgi money and its interest against the aforesaid amount of fixed rent he shall pay to us the proprietors, on taking: receipts and Farkhati, such sums out of the amount of profit as may be found due to us installment after installment and year after year...and he shall cease to have any connection with the leasehold property on the expiry of the term. The expenses relating to boundary disputes and new items of expenditure shall be borne by us the proprietors. The expenses relating to the Thana and Police shall be borne by the Thiccadar and the duty of compliance with the orders which may be passed by the officers under the law now in force or that may come in force hereafter shall also rest with him. In the last year of the term, i.e., in 1318, the said Saheb shall retire from the Zerait lands of indigo on payment of rent for 10 annas Kist to us the proprietors for 1319 Fasli according to the above rate if any such Zerait will be found to exist with the Khas partitioned Patti of us the executants in Mouza Bhushat Tara, Parganna Saraisa.

9. The lease was given to defendant No. 1 of the 6 annas odd share of the plaintiffs and defendants 2nd party in village Damodarpore Chak along with certain shares in another village Bhushar Tara, some specific lands detailed and described in the lease measuring 33 Bighas odd out of the Zerait Khudkasht lands situate in Bhushar Tara. No specific land was leased as appertaining to village Damodarpore Chak with which we are concerned in this litigation. The lands in dispute, 45 Bighas odd, are not at all specifically leased to defendant No. 1, nor are they mentioned in the lease. The lease in question is of a twofold character, (1) it confers a right upon the lessee to hold possession of certain shares in the village in place of the lessors, i.e., to collect the rents of the same and possibly to have some direct cultivation of such lands as the lessee himself could cultivate and (2) it gives the right to cultivate specific lands mentioned in the lease, of the Zerait Khudkasht lands in village Bhushar Tara. The lessee is, therefore, a tenure-holder in respect of 6 annas odd share leased to him in village Damodarpore Chak and a lessee for cultivating purposes in respect of the specific lands mentioned above in Bhushar Tara. In order to meet the double right conferred by the lease a general clause is added, namely--'The said Saheb, the Thiccadar, should remain in possession and occupation of the leasehold property, should make proper cultivation hereof, or should get the same cultivated by others by sowing indigo or any other crops according to his desire'. This clause has been relied upon by the learned Vakil for the appellant as conferring upon his client a right to cultivate lands in Damodar Chak and hence it is said that the lease was for cultivating purposes and was not a lease of a tenure. In order to determine whether the right conferred by the lease is that of a tenure-holder under the Bengal Tenancy Act, the intention of the parties has to be looked into. The principal object of giving the lease of an entire village or a share therein is to enable the lessee to collect rents from tenants. The fact that the lessee may bring under cultivation some lands in the village will not alter the character of the tenure created by the lease. There could be no lease for the purpose of cultivation in village Damodarpore Chak when no lands to be cultivated are specified in the lease, 'Raiyat' has been defined in the Bengal Tenancy Act to mean a person who has acquired a right to hold land for the purpose of cultivating them." If any Raiyati interest was intended to be conferred in respect of the lands situated in Damodarpore Chak, it would have been surely specified and described in detail as in the case of land situated in Bhushar Tara. The Zamindari rights in the share in Damodarpore Chak were clearly intended to be leased to defendant No. 1, as is obvious from the words used in the lease itself. The rights given by the lease have been summed up in the words All the Zamindari rights appertaining to it' and the lessee has been described in the lease as Thiccadar. The concluding words quoted in the extract from the lease will show that there is a special stipulation in respect of the Zerait lands leased to defendant No. 1 for the purpose of cultivating indigo. There is no such stipulation with regard to such lands as the lessee might directly cultivate in Mouzah Damodarpore Chak with which we are concerned. I am, therefore, of opinion that the terms of the lease, particularly the clause relied upon by the appellant, do not confer on the lessee the right of a cultivating tenant or Raiyat in respect of the lands situated in Damodarpore Chak but that in respect of that Mouzah he occupies the position of a tenure-holder. The learned Vakil has relied upon the case of Ramdhari Singh v. Mackenzie 10 C.W.N. 351 for the construction that, he contends, should be put upon a lease of this kind. The lease quoted in that case shows that Mr. Mackenzie was given a lease of 2 annas 13 Gandas share in a village and also of specified lands of 18 Bighas 1 Cottah of Zerait together with 4 Bighas 1 Cottah which he had obtained from certain tenants in the village. The suit in that case related only to the said specific lands of 18 Bighas and 4 Bighas mentioned in the lease. It was found as a fact by the Courts below in that case that about 11 Bighas out of 18 Bighas were Mr. Mackenzie's Kasht lands (Raiyati lands) prior to the execution of the lease and that 4 Bighas were the Kasht lands of other tenants acquired by Mr. Mackenzie. It was further found as a fact by the lower Courts that Mr. Mackenzie was holding land in the village for more than 12 years. In second appeal on the facts found by the lower Courts Rampini and Casperez, JJ., held that the lease of the particular lands specified therein was only for cultivating purposes and conferred upon the lessee the rights of a Raiyat. The real reason for the decision in that case appears (at page 354) to be that the lessee could not divest himself of his Raiyati right acquired prior to the lease by describing it as a Zerpeshgi lease or the lands as Zerait of the proprietors. It further appears that the share of 2 annas 13 Gandas odd leased to Mr. Mackenzie was held by the lesser landlord exclusively and without any joint ownership with anybody else; whereas in the present case the 6 annas share leased to defendant No. 1 was held jointly by the lesser with other co proprietors. The facts of that case and the decision in that case with regard to the lease of specific lands cannot be any guide for the construction of the lease in the present case, where we are concerned with the lease of Zamindari rights of a joint share in a village given to defendant No. 1. On the other hand, the lease in the present case agrees in all its material terms with the lease referred to in the case of Bujrangi Raut v. Mackenzie 7 C.L.J. 475 decided by Rampini and Brett, JJ. Mr. Justice Rampini who was a party to the decision of the case in Ramdhari Singh v. Mackenzie 10 C.W.N. 351 makes a distinction, with which I entirely agree, between a lease of specific lands and the lease of certain shares in a village. He says:-

Now the learned District Judge has interpreted these leases as being cultivating leases and as giving occupancy rights to the defendants; and there is not the slightest doubt that as regards the first lease, that is, the lease of the 4th December 1861 relating to the 15 Bighas, he is perfectly right. But we cannot take the same view as he has done of the remainder of the leases. In the first place it will be seen that in Exhibit F, the grantee is spoken of as Thiccadar and in Exhibit II, dated the 12th April 1874, the grantee is described in a similar manner, Although this latter lease gives to the grantee the right to cultivate personally the share of the Mouzah or to cause it to be cultivated by others, yet there are certain provisions in it which seem to us to convey but the rights of a tenure-holder, as it will be seen that the plaintiffs convey to the grantee by this document all Zamindari rights save and except Brohmotar, Shehattar and Bishnuprit land, etc, prohibited by law". This view was upheld in the case of Raghubar Mohto v. H. Manners 11 Ind. Cas. 389 [LQ/CalHC/1911/129] ; 13 C.L.J. 568, decided by Mookerjee and Teunon JJ, where the decision in Ramdhari Singh v. Mackenzie 10 C.W.N. 351 was distinguished and where the lease was similar in its terms to that in the present case. The interpretation put upon the lease in that case would, therefore, apply to the present case. I have, therefore, no hesitation in holding that the lease in question conferred upon the defendant only the rights of a tenure-holder in respect of the lands in village Damodarpore Chak.

10. If defendant No. 1 was a tenure-holder, he could not acquire a right of occupancy in the lands in suit comprised in his Ijara or farm while holding the village as an Ijaradar or farmer, vide clause 3, section 22 of the Bengal Tenancy Act, as it has already been shown that he came to be in possession of the land in suit after the execution of the first lease as a lessee and that he was never in possession of the lands in suit prior to that lease. Again the lessors in this case were part proprietors of the village which was an Ijmali or joint village. They had no right to create any right in respect of any specific lands in the village to the prejudice of the other co-proprietors without their consent. Defendant No. 1 acquired only such rights to hold possession of the lands as the lesser had. The lesser could cultivate specific lands; he could not possibly acquire a tenancy right as against the other co proprietors, inasmuch as he could not hold adversely to himself and other co-proprietors. This principle has recently been pointed out in Ram Lal Sukul v. Bhela Gazi 6 Ind. Cas. 370 [LQ/CalHC/1910/214] ; 37 C. 709; 14 C.W.N. 814; 12 C.L.J. 15. It has not been suggested, and in fact there is absolutely nothing on the record to show, that defendant No. 1 acquired a tenancy right in the lands in suit as against the other co-proprietors.

11. It was urged on behalf of the respondents that the defendant No. 1 is a co-proprietor in the village and was co-proprietor when the lease was executed. He could not, therefore, under clause 2 of section 22 of the Bengal Tenancy Act acquire any occupancy right in the village. This point does not appear to have been raised in the Courts below. There is no issue, nor any finding on it. On the other hand, the learned Vakil on behalf of defendant No. 1 tried to show that the defendant No. 1 acquired his proprietary interest in the lands from 1895 to 1915, that is, subsequent to the execution of the lease. A reference has been made to certain entries in a certified copy of extracts from Register D of the Collectorate. This Register shows that the defendant No. 1st name was mutated in respect of 4 annas odd in place of other proprietors from 1895 to 1915 on the basis of purchases made by him from time to time from proprietors, but when those purchases were actually made is not mentioned. Possibly these purchases were after the lease taken by the defendant. But with respect to 14 Gandas he has been entered in the Register as original proprietor without any date. That would show that he was a part proprietor in respect of 14 Gandas soon after the Land Registration Act came into force in 1876 and hence prior to the first lease of 1882. If that is so, then clause 2 certainly bars him from acquiring any right of tenancy, occupancy or non-occupancy, in the lands.

12. The defendant lastly relies upon clause 2, section 22 of the Bengal Tenancy Act, for his contention that he cannot be dispossessed from the lands but that he is only liable to payment of rent to the co-proprietors. This might have been so as long as the village was held jointly by all the proprietors, but on & partition of the lands the defendant as co-proprietor has no right to claim possession of the lands under clause 2, section 23 of the Act. The clause is intended to prevent a co-proprietor from acquiring occupancy rights in the lands transferred to him: vide Ram Lal Sukul v. Bhela Gazi 6 Ind. Cas. 370 [LQ/CalHC/1910/214] ; 37 C. 709; 14 C.W.N. 814; 12 C.L.J. 15. In the next place the argument of the defendant is based upon the assumption that he acquired an occupancy right in the land. But as a matter of fact, as already shown, neither under the lease nor upon evidence on the record the defendant acquired any Raiyati interest, occupancy or non occupancy in the lands in suit. I fail to appreciate the contention of the learned Vakil for the appellant that conceding that he could not acquire an occupancy or non-occupancy, right under clause 2 as a co-proprietor, still he has some interest under clause 2, section 22, and that he could not be deprived of that right to hold possession of the lands. But the defendant was either a Raiyat or a landlord. It has been shown that he is not a Raiyat and is only a co-proprietor. He is, therefore, bound to give up possession of the lands held by him as a lessee and to allow the lands to be partitioned and distributed between the co-proprietors of the village.

13. As a matter of fact there is absolutely no evidence on behalf of the defendant No. 1 that the lands were either cultivated by himself or on his behalf. All that is said in evidence is that the lands were in his possession, which would be so as he was a lessee of the shave in the village and as also he was holding the entire 16 annas of the village partly as a lessee and partly as a co-proprietor (hide evidence of plaintiffs' witness No. 2, Genda Lal Patwari, page 13 of the paper-book). Thus it is clear that even if under the lease the defendant No. 1 could acquire tenancy right in respect of such lands as he would cultivate himself or through others, he has failed to show that the lands in question were actually in his cultivating possession directly or through others and hence he could not acquire any Raiyati interest in the lands. The claim of the defendant No. 1 to hold the lands as a Raiyat or tenant must, therefore, fail and the plaintiffs are entitled to have them brought under partition.

14. The third point urged by the appellant is that the suit of the plaintiffs is barred by limitation. This contention is baaed upon Schedule III-1(a) of the Bengal Tenancy Act, which requires that suits for ejectment of non-occupancy tenants should be brought within six months from the expiry of the lease under which the lands are held. In this case there is no claim by the plaintiffs to eject the defendant from the lands. The plaintiffs' suit is principally and solely a suit for partition of his share in the village. It is simply prayed that the lands in suit be declared to be the lands of the Maliks and not the lands in respect of which defendant No. 1 has acquired occupancy or non-occupancy rights. This declaration was necessary to obtain the principal relief. Again, as held above, defendant No. 1 has neither occupancy nor non-occupancy rights in respect of these lands and, therefore, Schedule III-1(a) has no application. The Full Bench case of Janki Singh V. Jagannath Das 44 Ind. Cas. 94 [LQ/PatHC/1917/328] ; 3 P.L.W. 1, relied upon by the appellant, does not go far enough to hold that the present suit is barred by limitation. I, therefore, hold that the suit is not at all barred by limitation.

15. I would dismiss the appeal with costs.