1. This is an appeal on behalf of the plaintiffs in anaction commenced by them under section 106 of the Bengal Tenancy Act. Itappears that the plaintiffs have been recorded as tenure-holders in the recordof rights and their prayer is that the record may be amended and they bedescribed as occupancy raiyats. The Courts below have concurrently found thatthe plaintiffs are tenure-holders and that the entry in the record representsthe correct state of affairs.

2. On behalf of the plaintiffs-appellants, it has beencontended that their status is determined by the lease granted to them on the27th September 1898; that, upon a true construction of that document, it oughtto be held that they are occupancy-raiyats; that, at any rate, in so far as thesuperior landlords defendants are concerned, they cannot be allowed to questionthe correctness of the allegation in that instrument and that, in so far as theunder-tenant-defendants are concerned, as they did not substantially resist theclaim in the original Courts, the suit ought not to have been dismissed asagainst them. In our opinion, each of these points is unsustainable and must beoverruled.

3. In so far as the question of the status of the plaintiffsis concerned, the Courts below have held that that question must be answeredwith reference to the terms of the lease of the 24th June 1874, by which thetenancy was apparently created. This view is manifestly sound, the plaintiffsare purchasers of the tenancy at a sale held in execution of a decree forarrears of rent and after their purchase, they have executed a kabuliyat infavour of their superior landlords on the 27th September 1898. The nature ofthe tenancy, therefore, must be determined primarily with reference to thelease of the 24th June 1874. That document, in our opinion, shows that thetenant who accepted that lease was a tenure holder. The lease recites, in thefirst place, that there were resident tenants on the land demised. In thesecond place, it shows that it was a lease for a term of 12 years and yet wasregarded as a temporary tenancy. In the third place, it provides that thelessee was to hold the land either in khas or by letting it out to tenants.Each of these three elements serves to indicate that the interest created infavour of the lessees was that of tenure-holder. It was pointed out by Mr.Justice Field in the case of Durga Prosonno Ghose v. Kalidas Dutt 9 C.L.R. 449,that the true test of a raiyats interest is to see in what condition the landwas when the tenancy was created. If raiyats were already in possession of theland and the interest created was a right not to the actual physical possessionof the land but to collect rents from their raiyats, that is not a raiyatiinterest. The recital in the lease of 24th June 1874 shows that there wereresident tenants in occupation of the land at the time and, as khud kashtraiyats would not ordinarily be liable to be ejected, the lessees could holdpossession of the land only by receipt of rents from their tenants. In thesecond place although the tenancy was for a term of 12 years, it was describedas temporary. That would hardly be an appropriate description, if the intentionof the lessor was to create in the lessee the interest of an occupancy-raiyat,because if the lessee became an occupancy raiyat he could not, under ordinarycircumstances, be ejected at the expiration of the term of the tenancy, In thethird place, the lease provided that the tenant was to hold possession eitherin khas or by letting it out to tenants. This, as pointed out in the case ofMidnapur Zemindary Company Ld. v. Sham Lall Mitra : 15 C.W.N.218; 6 Ind. Cas. 362 [LQ/CalHC/1910/194] , would indicate that the interest of a lessee was that ofa tenure-bolder. But, although the lease of 1874 indicates that the tenancy inits inception was a tenure, the learned Vakil for the appellants has contendedthat the nature of the tenancy must be determined with reference to thesubsequent conduct of the parties and he has placed considerable reliance uponthe later lease of the 27th September 1898, in which the tenancy is describedas an occupancy-holding. Now, the decision in the case of Midnapur zamindariCompany Ld. v. Sham Lall Mittra : 15 C.W.N. 218; 6 Ind. Cas.362, no doubt lays down broadly that in deciding the question of the characterof a holding, not only the origin of the tenancy but also the subsequentconduct of the parties should be taken into consideration. The statement is, inmy opinion, too comprehensively formulated; and one of the cases upon whichreliance was placed by the learned Judges, namely, in the case of MidnapurZemindary Co. v. Bamapada Roy : 13 C.L.J. 485 : 10 Ind. Cas.430, does not furnish any authority for this proposition. The learned Judgeswho decided that case merely laid down that, if the terms of the original grantare ambiguous, the subsequent conduct of the parties may be looked into toascertain the nature of the tenancy in its inception. Where, however, as here,the terms of the original grant are unambiguous it cannot be laid down as aninvariable proposition of law that the nature of the tenancy is necessarilyaltered by the subsequent conduct of the parties. It would be very difficult tohold, at any rate, that by the subsequent conduct of the parties the nature ofthe tenancy might be altered to the detriment of the under-tenants. Thedecision of this Court in the case of Mohesh Jha v. Man Bharan Mia 5 C.L.J.522, perhaps, shows that the subsequent conduct of the parties might alter thenature of the tenancy for the benefit of the under-tenants; but, on nointelligible ground can it be mentioned that, after A. has granted a lease infavour of B. and B, has granted a sub-lease in favour of C, A. and B. by anyconduct of theirs could prejudice the position of C.

4. The learned Vakil for the appellants further contendedthat, in so far as the undertenants were concerned, they had not resisted thesuit in the Court of first instance and, therefore, that the case ought to befurther investigated. It is clear, however, that these defendants may supportthe decision pronounced in their favour by both the lower Courts and they areentitled to contend that the recital in the lease of 1S98, could not, in anyway, affect their position. We may farther point oat that the case of BaidyaNath Mondal v. Sudharam Misri : 8 C.W.N. 751 shows thatconduct subsequent, while it might throw light upon the nature and origin of atenancy, could not be taken to affect its terms. It may also be observed, aspointed out in the case of Syed Nawab Ali Chowdhry v. Hunmanta Kumari Debi: 8 C.W.N. 117, that the mere description of a tenancy as ajote does not conclusively show its true nature. It is undoubtedly open tostrangers to show that, although its character is described as a jote, its realcharacter is that of a tenure. Under these circumstances, we must bold that theview taken by the Courts below is correct and that the nature of the tenancy asindicated by the lease of 1874 has not been affected by the lease of 1898. Theresult therefore, is that the decree of the Court of appeal below is affirmedand this appeal is dismissed. There will be no order for costs as the landlordshave not resisted the appeal and the undertenants, so far as they areconcerned, have already been paid their costs in this Court by the appellants.

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Pramotha Nath Kumarvs. Nilmoni Kumar (15.02.1911 -CALHC)