1. The subject-matter of (his litigation, which has nowlasted for over nine years, is 31 bighas of land whereof the plaintiffs appellantsclaim to recover possession from the first party defendants. The second partydefendant Mahomed Yeasin is proprietor of estates which bear numbers 5672, 5674and 5518 on the Revenue Rolls of the Collector of Darbhanga. The plaintiffs onthe 15th December 1901 took a lease of the first two and of a one-half share ofthe third putti which comprised Mauza Charo in Pergana Kasma, where thedisputed lands are situated. The plaintiffs allege that these properties werelet in thica by the proprietor on the 9th May 1876 to one Digamber Singh from1284 to 1291 (1877 to 1884). Digamber Singh sub-let the properties under akatkina lease dated the 19th October 1876 to the Isboulpur Indigo Factory ofwhich the Ilmashnugar Indigo Factory was an outwork. The first party defendantsbecame proprietors of the latter Factory and remained in possession of theproperties till the end of 1291 on the strength of the katkina lease. Upon theexpiry of the lease, the first party defendants took lease of these propertiesand another property Silliputtee from 1292 to 1306 under a kabuliyat executedin favour of the proprietor on the 19th October 1884. The case for theplaintiffs is, that while the first party defendants were in possession underthe sub-lease and the lease, they cultivated indigo on about 33 bighas of landwhich, under the terms of a covenant in the lease of the 19th October 1884,they were bound to surrender upon the expiration of that lease in 1306. Theplaintiffs assert that they have been able to get possession of only about 2bighas out of the 33 bighas of indigo land and they have accordingly sued torecover possession of the remainder. The first party defendants have resistedthe claim, substantially on the ground that they had a right of occupancy inthe lands in suit, and they have denied that the lands were the khudkasht landsof the proprietor as described in the plaint. Upon these pleadings severalissues were raised, of which two were important, namely, whether the lands indispute were the kasht lands of the first party defendants, whether they hadany right of occupancy therein and whether they were entitled to retainpossession after the expiry of their lease. At the original trial in the Courtof first instance, the learned Subordinate Judge, under circumstances whichneed not now be recited, threw the burden of proof upon the first partydefendants, except upon one question, namely, whether the plaintiffs were, asalleged by them, lessees from the proprietor. The result was that thedefendants were called upon to prove their case first, and as in the opinion ofthe Subordinate Judge, they failed to discharge the onus, he made a decree infavour of the plaintiffs. The first party defendants then appealed to thisCourt, and the principal contentions urged on their behalf were that the burdenof proof had been erroneously thrown upon them, that the Court below hadimproperly omitted to frame an issue upon the question whether the landsclaimed were raiyati lands or khudkasht or maliks zerait lands, and that,generally, the defendants had been prejudiced by the manner in which the trialhad been held in the original Court. These contentions prevailed, and the casewas remanded for re-trial. After remand, two witnesses were examined and theSubordinate Judge dismissed the suit. The plaintiffs have now appealed to thisCourt, and on their behalf the learned Counsel has argued that, upon the faceof their lease they are entitled to possession of the disputed lands, that;according to the covenant in the kabuliyat executed by the defendants on the19th October 1884, they were bound to surrender the indigo lands now in disputeupon the expiration of the term, and that the claim of the defendants tocontinue in possession as raiyats was wholly unfounded. Before we deal withthese questions, we must advert for a moment to an argument addressed to us bythe learned Counsel for the respondents as to the scope of the order of remand.It was argued that the order of remand left only certain specific questionsopen for examination and that the contentions of the appellants in the caseindicate an attempt to question indirectly the property of the remand. HerbertManners v. Chatter Mahto : 13 C.W.N. 664 : 4 Ind. Cas. 531 [LQ/CalHC/1907/69] .In our opinion there is no substance in this contention. The order of remand,to which one member of this Bench was a party, taken as a whole, plainlyindicates that all the substantial questions in controversy were left open forconsideration. The plaintiffs were to have an opportunity to prove either thatthe lands are zerait or any other title on which they claim to be entitled toeject the defendants. If such title was established, the first party defendantswere to be entitled to defeat the claim by proof of a tenancy right alleged underthe kurtowli leases or by purchase from Tenga Mahton or by any otherarrangement which might protect them from eviction. The whole case was remandedfor rehearing, and the Court below was directed to arrive at findings on thepoints specifically noticed in the order of remand as also on the other issuesraised between the parties. In view of these specific directions no weight canbe attached to the contention of the respondents that the appellants havecovertly attacked the order of remand.

2. Now, in so far as the questions in controversy areconcerned, they he in a narrow compass, and upon the whole evidence on therecord, we feel no doubt whatever as to the manner in which they ought to beanswered. In the first place, so far as the title of the plaintiffs isconcerned, there is no room for dispute that the lands in controversy areincluded within the lease granted to them by the proprietor. The plaintiffshave not proved that the lands form the zerait of the proprietor, but suchproof is obviously immaterial for the purposes of the suit. The true characterof the lands would only be material, if the defendants prove some kind ofagricultural tenancy right thereon, so as to make the provisions of section 116of the Bengal Tenancy Act applicable. But the plaintiffs seek to eject thedefendants, not on the ground that they are not entitled to keep possession ofzerait lands against the wishes of the proprietor, but rather on the groundthat they are now trespassers as they are not entitled to continue inoccupation of these lands after the termination of their ijara in 1899. Therecan, therefore, in our opinion, be no serious controversy as to the title ofthe plaintiffs as lessees from the admitted proprietor. It was, no doubt,faintly suggested by the learned Counsel for the respondents that the leasewhich is the root of the title of the plaintiffs is fictitious and that theyhave acquired no enforceable title thereunder. No issue was, however, raisedupon this question, and upon the arguments which have been addressed to us, weare by no means convinced that any weighty ground has been assigned fordoubting the reality of the transaction. We must consequently hold that theplaintiffs as lessees from the proprietor are entitled to possession of the disputedlands, unless the defendants establish that they have a subsisting tenancyright therein. When we come however, to analyse the evidence in proof of asubsisting tenancy of the defendants, it turns out to be of the mostunsubstantial character. As we have already stated, the Factory have beenlessees of the village from 1877 onwards. During the first seven years, theywere lessees under Digamber who held from the proprietor, and since then, theyhave been in possession under their own lease of the 19th October 1884. Theterms of these leases have expired. Under them, the defendants were in theposition of ijaradar and could not possibly acquire the status of non-occupancyor occupancy-raiyats. In fact, it has not been suggested before us that theseleases were intended to create in the defendants the status of raiyats. Such aview, indeed, could not possibly be maintained, because cultivation was not themain purpose of the demise. [See Bujrangi v. Mackenzie 7 C.L.J. 475, BengalIndigo Company v. Roghobur Das : 24 C. 272 : 23 I.A. 158 : 1C.W.N. 83]. The cases of Ram Khelawan v. Sumbhoo Roy : 2C.W.N. 758 and Ramdhari v. Mackenzie : 10 C.W.N. 351 areclearly distinguishable. They merely show that if the lease was in its essencea raiyati lease, the status of the tenant would not be effected merely becauseit was called a zur-i-peshgi or because the tenant accepted in addition to hisraiyati interest also the interest of a zur-i-peshgidar. Clearly, therefore, inthe case before us, the defendants are not entitled to continue in occupationupon the strength of the lease of 1884 which terminated in 1899. Have they,then, any other title sufficient to enable them to resist the claim of theplaintiffs The plaintiffs assert--and the evidence upon this point ispractically one-sided--that the Factory snatched away these lands by force fromthe cultivating raiyats. The evidence of Manners depicts a state of thingsdifferent only in name; if the lands were not taken away by force, the tenantswere induced to part with them. It may further be noticed that, although thedefendants produced some kurtowli leases, they took no steps whatever to havethe lands identified. They had ample opportunity to do so. In fact, theplaintiffs filed interrogatories to obtain information from Manners upon thispoint. But he declined to answer the interrogatories as irrelevant. Thelegitimate reference is that an inquiry into this matter would not haveassisted the defendants. Apart from this circumstance, there are two seriousdifficulties in the way of the defendants. In, the first place, there is acovenant in their lease of 1884 by which they under-took to withdraw from theindigo lands upon the termination of their ijara. That clause is in thefollowing terms: Whatever indigo may be sown on land in 1306 (Fasli) by myselfand may be standing on the land. I will cut in 1307 (Fasli) and I will thenrelinquish the aforesaid land in proportion to the proprietors shares, and Iwill pay 10 annas of rent therefore for 1307 (Fasli) to the said proprietors inproportion to their shares in respect whereof I will not raise any sort ofexcuse and objection." There was some discussion at the Bar as to thecorrect rendering of the corresponding passage in the original lease, and itwas suggested by the learned Counsel for the respondents that this covenantapplied only to such indigo lands as might be proved to be the zerait of theproprietor. The restrictive interpretation suggested is, in our opinion, whollyinadmissible. The passage in the original has been read out to us and it hasbeen translated at our instance by two different translators attached to theCourt whose vernacular is Urdu. The translation as given above was made in 1904by another translator whose vernacular is also Urdu. We feel no doubt whateverthat the rendering given above is a correct version of the original. There can,therefore, be no room for controversy that the defendants entered into anengagement with their lessor, now represented by the plaintiffs, to relinquishthe indigo lands in dispute upon the expiry of the term of their lease, and noreason has been even suggested why they should not abide by the terms of thecontract.

3. In the second place, the provisions of section 22,sub-section (3) of the Bengal Tenancy Act, completely negative the defence.That section provides that a person holding land as an ijaradar, or farmer ofrents, shall not, while so holding, acquire a right of occupancy in any landcomprised in his ijara or farm. This section, in our opinion, prevents theijaradar horn acquiring a right of occupancy in any land comprised in the ijaraby any means whatsoever, for instance, by purchase or otherwise. It is truethat a different view was taken in the case of Ramrup Mahto v. H. Manners 4C.L.J. 209 where it was ruled that the word "acquire" did not include"purchase." It is to be observed, however, that in the casementioned, the question arose between vendor and vendee, and also betweenlandlord and tenant, so that it was not open to the vendor subtenant to disputethe title of the vendee-landlord; the question, therefore, did not really arisefor decision, and we are not prepared to follow the view taken as accuratelyrepresenting the true view of the law; as a matter of fact, the Legislaturepromptly intervened and by Act I of 1907 (B.C.) the words "by purchase orotherwise" were inserted after the word acquire. Under the law, therefore,as it now stands, there can be no doubt as to the true effect of section 22,sub-section (3), and, in our opinion, the amendment merely gave effect to whathad always been the law. It was suggested, however, that the decision in thecase of Ramrup Mahto v. H. Manners 4 C.L.J. 209 was given with regard to asmall portion of the lands which form the subject-matter of this litigation,though there are no materials for identification. That circumstance is, wethink, immaterial. In the first place, the decision was given in a suit for,rent brought by Manners against an under-tenant it cannot consequentlyprejudice the rights of the proprietor through whom the plaintiffs claim title.In the second place, that suit was originally tried in the Court of a Munsifwho would not have been competent to take cognizance of the present suit;consequently, although the ultimate decision in that, suit was by this Court,it cannot operate as res judicata; for, upon the authorities reviewed in ShiboRaut v. Baban Raut : 7 C.L.J. 470 : 35 C. 353 : 12 C.W.N.359, it must now be taken as firmly settled that it is the competency of theoriginal Court which decided the former suit that must be looked to and notthat of the Appellate Court in which the suit was ultimately decided on appeal.On a review, then, of the whole evidence on the record the conclusion appearsirresistible that the defendants have no subsisting right on the basis whereofthey can resist ejectment.

4. The result, therefore, is that this appeal must beallowed and the decree of the Subordinate Judge discharged. The claim of theplaintiffs for recovery of possession is decreed. They are entitled to directpossession of the lands described in Schedules (A) and (B) and joint possessionto the extent of one-half share of the lands mentioned in Schedule (C). Theyare also entitled to mesne profits. The case will be remanded to theSubordinate Judge in order that he may assess the mesne profits from the datewhen the title of the plaintiffs accrued to the date when possession may bedelivered to them. If the plaintiffs desire to have a partition of the landscomprised in Schedule (C), they will be entitled to do so in a separate suitproperly framed for the purpose. The plaintiffs are entitled to their coststhroughout the litigation.

.

Raghubar Mahto vs. H.Manners (01.03.1911 - CALHC)