Authored By : Charles William Chitty, Nalini RanjanChatterjee

Charles William Chitty, J.

1. This appeal by Raja Promoda Nath Roy, Defendant No. 2,arises out of a suit brought by the Plaintiff, Asiruddin Mandal, for adeclaration that the entry as regards the Plaintiffs status in therecord-of-rights, describing him as a tenure-holder, is erroneous, and prayingthat the Plaintiff be declared to be an occupancy raiyat. The Secretary ofState for India in Council, Defendant No. 1, supports Defendant No. 2, theijaradar under Government, in his contentions. The other Defendants have notappeared. The Subordinate Judge of Pabna and Bogra has decided in thePlaintiffs favour. Hence this appeal. Two points arise for our determination(1) whether the suit is barred by limitation and (2) whether Plaintiff is infact an occupancy raiyat. The first question depends on whether the suit fallswithin the class of suits indicated by sec. 104H of the Bengal Tenancy Act. Ifit must be regarded as brought under that section, it is admittedly out of timehaving been instituted more than six months after the certificate of finalpublication of the record-of-rights. On a careful consideration of the natureand scope of the suit and a perusal of the sections In Chap. X of the BengalTenancy Act, I am clearly of opinion that this is not a suit within the purviewof sec. 104H. A suit to be brought under that section must have reference to anentry of a rent settled in a Settlement Rent Roll or to the omission to settlesuch an entry. The Plaintiffs suit is not of that nature. He makes nocomplaint as to the rent settled nor as to the entry in the Settlement RentRoll. His complaint is that being an occupancy raiyat he has been wronglydescribed as a tenure-holder in the record-of-rights [see sec. 102 (b)].TheSettlement Rent Roll need only show the name of each landlord and of eachtenant, and the amount of each tenants rent payable for the area shown againsthis name [sec. 104A (2)]. His status would not necessarily appear there. It istrue that the question of status might come into a suit under sec. 104H, (seecl. (3) (e) of that section) but that is not the case here. This suit clearlyfalls within the category of suits alluded to in sec. 111A, a suit fordeclaration of a right under Chap. VI of the Specific Relief Act, 1877. Theperiod of limitation for such a suit would be 6 years, and this suit istherefore within time.

2. The second question whether the Plaintiff is an occupancyraiyat is one of fact and must be determined on a consideration of the evidencein the case. The Plaintiff admits to being in occupation of 1815 bighas : thepresumption is therefore that he is a tenure-holder [see Bengal Tenancy Act,sec. 5 (5)]. This presumption, however, is liable to be, and I think that inthis case it has been, rebutted. We have in this case evidence of the origin ofthe holding. On 29th Aughran 1220 (12th December 1813), a potta was granted of235 bighas (210 of newly formed lands and 25 for making homesteads) to sevenpersons of whom Nadi Mandal, the great uncle of the Plaintiff was one. Thatpotta clearly shows that the grant was for individual cultivation, and theamount leased to each, about 30, would be in accordance with that intention.

3. Nadi Mandal and his successors have by purchases orgrants of additional lands acquired the whole of the original holding withadditions. Thus we find Nadi Mandal with others getting 250 bighas forcultivation on 1st Chaitra 1228 (13th March 1822), (see Ex. 4). Next we have aletter (Ex. 3), dated nth Aswin 1234 (26th September 1827), showing that apotta and roka in respect of 685 bighas had been granted to Nadi Mandal. On29th March 1875, the Collector of Pabna drew up a Rubakari in para. 5 of whichhe stated that of 676 tenants in the mehal it appeared from enquiries andinvestigation that 636 have been in possession for more than 12 years and hadacquired occupancy rights (Ex. 1). Among those 636 the name of BasituddinMandal appears as holding 4 jotes. There do not appear to have been anytenure-holders in this mehal at that time.

4. In 1878 and again in 1883 the ijaradar served BasiruddinMandal with a notice for enhancement of rent in respect of jote No. 165 undersec. 14 of Act VIII of 1869, see (Exs. 12 and 11). In the settlement papers of1885 Basiruddins jotes were converted into three but he was still described asa raiyat.

5. It was not until 1905, when Ms jotes were converted intotwo, that he was for the first time described as a tenure-holder. The oralevidence is not of much assistance in a case like the present, but such as itis, it is in favour of the Plaintiff. I think that the decision of theSubordinate Judge was correct, and that this appeal must be dismissed.Defendant No. 2 must pay the Plaintiff his costs of the appeal. The Secretaryof State for India in Council will bear his own costs. This judgment will alsogovern R. A. No. 598 of 1909, which arises out of a suit brought by the Plaintiffin relation to his other jote of 790 bighas, and depends upon the same facts.This appeal is also dismissed. The Appellant must pay the Plaintiffs costs ofthe appeal. The Secretary of State in Council must bear his own costs.

Nalini Ranjan Chatterjee, J.

6. The Plaintiff-Respondent sued for a declaration that anentry in the record-of-rights as regards his status describing him as atenure-holder is erroneous and for a declaration that he is an occupancyraiyat.

The Court below decreed the suit and the Defendant No. 2 hasappealed.

The first question raised is whether the suit falls undersec. 104H of the Bengal Tenancy Act. If it is a suit under that section it isbarred not having been instituted within 6 months of the final publication ofthe record-of-rights.

7. Sec. 104H forms one of the sections of Part II of ChapterX of the Bengal Tenancy Act and Part II is headed as "settlement of rents,preparation of Settlement Rent Roll and disposal of objections in cases where asettlement of land revenue is being made or is about to be made," andsecs. 104 to 104F prescribes the procedure to be adopted for carrying out thesame. Then comes sec. 104H which provides for suits in Civil Courts by personsaggrieved by an entry of a rent settled in a Settlement Rent Roll preparedunder secs. 104A to 104F and incorporated in a record-of-rights finallypublished under sec. 103A or by an omission to settle a rent for entry in suchSettlement Roll, and the period of limitation prescribed for such a suit is 6months.

Sub-sec. (3) of that section lays down the grounds on whichsuch a suit may be instituted. The suit, however, in order to come within thepurview of sec. 104H must be one which relates to an entry of a rent settled ina Settlement Rent Roll or an omission to settle a rent. The present suit is notof that description. The Plaintiff does not complain of any rent settled nor ofany entry in the Settlement Rant Roll. It is, however, contended on behalf ofthe Defendant-Appellant that the suit comes under cl. (e) of sec. 104H (3),because under that clause a suit may be brought on the ground " that thetenant belongs to a class different from that to which he is shown in therecord-of-rights as belonging." But that is only one of the grounds uponwhich a person aggrieved by the entry of a rent settled in the Settlement Rollcan institute a suit. Where no question as to entry of a rent settled or anomission to settle rent is concerned, the suit does not come under sec. 104H.It was contended on behalf of the Appellant that in cases where, as in thepresent, the settlement of land revenue is being made, suits upon the groundsuch as is mentioned in cl. (e), are intended to be speedily disposed of, andthat the provisions of sec. 111A under which a declaratory suit can be broughtwithin 6 years should not be held to apply to such suit. That contention wouldbe correct, " if the suit has reference to an entry as regards rent. Forinstance, if a tenant complained of the rent settled on the ground that he isnot a tenure-holder or an under-raiyat but is an occupancy raiyat and his renthad been settled on the basis of his being a tenure-holder or an under-raiyatas the case may be, the suit would come under sec. 104H and the 6 monthslimitation provided by that section would apply. So the question of statusmentioned in cl. (e) of sec. 104H (3) might be laised in a suit under thatsection, provided the question of rent depends upon the question of status.That the section has reference only to suits relating to an entry of rent isalso indicated by sub-sec. (8) of that section which runs as follows :-Save asprovided in this section no suit shall be brought in any Civil Court in respectof the settlement of any rent or the omission to settle any rent under secs.104A to 104F.

8. In the present case the Plaintiff merely complains thathe has been wrongly entered as a tenure-holder in the record-of-rights preparedunder sec. 102 and wants a declaration that his status is not that of atenure-holder, but is that of an occupancy raiyat. He claims to be inpossession of such a right and the suit therefore comes under sec. 111 A, whichmay be brought within six years.

9. I accordingly hold that the suit does not come under sec.104H and is not barred by limitation.

10. The next question is whether the Plaintiff is a tenureholder or a raiyat with a right of occupancy. The area held by the Plaintiff is1815 bighas : so he must be presumed to be a tenure-holder until the contraryis shown . The contrary however has been shown by the evidence in the presentcase.

11. The first lease is dated the 29th Sraban 1220. It wasgranted, in respect of 210 bighas of newly formed lands, and 25 bighas of landsfor making homesteads, by the ijaradar to 7 persons, one of whom was NadiMandal the grand-uncle of the Plaintiff. The lessees were to enjoy the lands byremaining in possession of the lands and homesteads by cultivating the landsand erecting houses. The next document, which is a letter, dated the 1stChaitra 1228, from the zemindar to the ijaradar, states that the lands grantedto the lessees were not sufficient for the necessities of them all and thatthey had applied for some more lands to cultivate and to hold on payment ofrent and accordingly 250 bighas of land were granted to those persons forcultivation and the ijatadar was directed to give them possession by dividingthe plots. So far as these lands are concerned the leases clearly show that thelands were granted to the tenants for the purposes of their own cultivation andnot for bringing the lands under cultivation by establishing tenants on them.

12. It appears that Nadi Mandal and his successors acquiredthe whole of the original holdings and also acquired other lands by purchase orgrants and there were accretions also As regards these other lands however theoriginal leases, if there were leases for all such lands) have not beenproduced. The letter, dated 11th Aswin 1234, from the zemindar to the ijaradarshows that Nadi Mandal had been granted 685 bighas by potta and roka and theijaradar was directed to make a deduction of 3 cottas from each bigha ofraiyati holding in fixing the rent. From the Collectors Settlement Rubakari,dated 29th March 1875 it appears that 636 out of 676 tenants in the mehalhaving been in possession for more than 12 years had acquired occupancy rightsand the Terijjamabandi for 1876 show that Basiruddin (father of the Plaintiff)held 4 jotes. There is no mention in the Rubakari of there being anytenure-holder in the mehal. Basiruddin was served with notices of enhancementin 1878, and again in 1883 by the ijaradar under sec. 14 of Act VIII of 1869,B. C., in respect of one of the jotes.

13. In the subsequent settlement papers of the year 1885,the jotes in the name of Basiruddin were converted into three but his statuswas described therein to be that of a raiyat. In the recent cadastral survey in1905, the jotes were made into two jotes and the Plaintiff was described forthe first time as a tenure-holder. He raised objections but his objections wereoverruled, and hence this suit.

14. It thus appears that the original jotes consisting ofabout 485 bighas of lands were originally acquired by the tenants for their owncultivation. These were newly formed chur lands.

15. It is true the greater portion of the lands have forsome time been sublet to tenants on cash or produce rents but that would not, Ithink, alter the character of the tenancy. In the case of Durga Prosunna Ghoshv. Kali Das Dut 9 C. L. R. 449 (1881), Field, J., expressed the opinion that" the only test of the raiyati interest is to see in what condition theland was when the tenancy was created. If raiyats were already in possession ofthe land and the interest created was a right not to the actual physical possessionof the land but to collect rents from those raiyats the interest is not araiyati. If on the other hand the land was jungle or uncultivated or unoccupiedand the tenant was let into actual physical possession of the land that wouldbe a raiyati interest and the nature of the interest so created would not,according to a number of decisions of this Court, be altered by the subsequentsubletting to under-tenants." In Baidya Nath Mondal v. Sudharam Misri S.C. W. N. 751 (1904), Ghosh and Pargiter JJ., held that if the original grantwas raiyati, any subsequent subletting could not take away the true characterof the tenancy.

16. The test laid down in Durga Prosunna Ghoshs case citedabove, however, as pointed out in Midnapur Zemindary Co., Ld. v. Sham Lal Mitter15 C. W. N. 218 (1910), is not exhaustive. A person may be a tenure-holder notonly when he has a right to hold land for the purpose of collecting rents butalso when he is let into possession of the laud for the purpose of bringing itinto cultivation by establishing tenants on it. So the mere fact thatuncultivated lands are let out would not necessarily show that the person withwhom the lands are settled is a raiyat because uncultivated lands may be letout for establishing tenants on them. Sec. 5 of the Bengal Tenancy Act makesthe point clear by describing a tenure-holder as a person who has a right tohold land for the purpose of collecting rents or bringing it under cultivationby establishing tenants on it and a raiyat as a person who has acquired aright to hold land for the purpose of cultivating it by himself or by membersof his family or by hired servants or with the aid of partners.

17. It was however contended on behalf of the Appellant thatnot only the origin of the tenancy but also the subsequent conduct of theparties in regard to the land ought to be taken into consideration in decidingthe nature of the tenancy and reliance is placed upon the case of MidnapurZemindary Co., Ld. v. Sham Lal Mitter 15 C. W. N. 218 (1910).

18. I think the above rule applies to cases where the termsof the lease are ambiguous and the original purpose of the tenancy is not clearand I am supported in this view by a recent unreported case, Second Appeal No.2189 of 1908, decided on the 15th February 1911 by Mookerjee and Teunon, JJ.,in which the learned Judges stated their opinion that the above rule was"too comprehensively formulated." The terms of the lease in the caseof Midnapur Zemindary Co., Ld. v. Sham Lal Mitter 15 C. W. N. 218 (1910) showthat the tenant was to cultivate the lands or cause them to be cultivated andthe learned Judges (Brett and Sharfuddin, JJ.) in that case held that the termsof the lease " would not necessarily imply that the tenant was to bringthe lands under cultivation himself or by members of his own family or by hisown servants " and that " there was nothing in the terms of the leaseto render it improbable that the intention was that the land should be broughtunder cultivation by establishing tenants on it.

19. In one of the two unreported cases referred to in thejudgment in that case, viz., Appeal from Appellate Decree No. 1576 of 1906,decided by Caspersz and Doss, JJ., the learned Judges observed as follows :- Itis quite clear from the case of Mohesh Jha v. Manbharan Mia 5 C. L. J. 522(1901) that when the terms of the lease are ambiguous the Court must see how,since the grant was made, the parties have chosen to deal with the land.... Wethink that the clause upon which the learned District Judge has based hisconclusions is ambiguous and that being so the question must be solved byhaving recourse to evidence of the surrounding circumstances and the subsequentconduct of the parties in regard to the subject-matter of the lease." Inthe other unreported case, Appeal from Appellate Decree No. 1716 of 1906,decided by Brett, J., the learned judge observes as follows :-"Thesettlement appears to have been made with them of lands amounting to nearly 350bighas in area and the object of the settlement was to enable them to bring thelands under cultivation either cultivating them themselves or by having themcultivated by persons as tenants."

20. In the case of Mohesh Jha 5 C. L. J. 522 (1901) referredto above the lease gave leave to the lessee to cultivate the land and get thesame cultivated, and it was pointed out that it was " at the best anambiguous document, and what the Courts have to see is, how since the grant wasmade the parties have chosen to deal with the lands. The learned Judges inthat case observed " nothing has been shown to us to lead us to theconclusion that a person who may have originally acquired a large tract of landostensibly with the object of cultivating it himself or by his servants ormembers of his family may not afterwards convert himself, so far as thirdparties are concerned, into a rent receiver and give those persons as againsthimself the right to remain upon the land without being liable to be ejected athis instance. We do not propose to lay down any principle in this case whichmay have the effect of binding the landlord who is not a party to this actionbut it seems to us that upon general principles and having regard to theprovisions of the law there is no bar to the Plaintiff or his predecessor intitle giving rise by his conduct to a right which would preclude him frommaintaining the present action for ejectment as against the Defendant." Inthat case the question of the tenants status arose between the tenants and hissub-tenant and not between the zemindar and his tenant. As to whether a raiyathaving sub-let the holding to under-raiyats for a long time converts himselfinto a tenure-holder so far as such sub-tenants are concerned so as to beprecluded from ejecting the under-raiyats need not be considered in this case,as no such question arises here, the only question raised being the status ofthe Plaintiff as a tenant under, and in relation to, the zemindar.

I think that it is only in cases where the terms of thelease creating the tenancy are ambiguous or in cases where there is no writtenlease and it is not clear what the original purpose of tenancy was, that theCourts should look into the subsequent conduct and surrounding circumstances todetermine the nature of the tenancy. Any other view may lead to anomalousresults. For instance, a person may take land for his own cultivation andcultivate the land for some years and then sub-let it to tenants for a longperiod and on the expiry of such period resume cultivation himself. Would hisstatus vary from time to time or suppose such a person cultivates the landfor 5 years and then transfers it to another who sub-lets the land say for 25years, what would be the status of the tenant so far as the landlord isconcerned So long as the land is held by the original tenant he must beconsidered to be a raiyat, but if the Court must look to subsequent conduct insuch cases, the tenancy may be held to be tenure having regard to the fact thatthe land has been sub-let to sub-tenants for such a long period. Then, again,suppose the transferee after holding the land for 25 years transfers it to athird person who cultivates the land himself, what would be the status of sucha person Similarly a person may take land for the purpose of collecting rentsor for establishing tenants on it, and subsequently acquire khas possession ofthe lands and cultivate the same himself, would be cease to be a tenure-holderand become a raiyat Would the character of the tenancy vary according to themanner in which the land is held by the tenant for the time being I think thecharacter of the tenancy is determined at the time of the original grant andsec. 5, cl. 2 of the Bengal Tenancy Act which, in describing a raiyat says thatraiyat means a person who has acquired a right to hold land for the purpose ofcultivating it by himself, etc., shows that the acquisition of the right tohold the land for the purpose of cultivating it has reference to the inceptionof the tenancy. Of course there is nothing to prevent the landlord and tenant, notwithstandingthe existence of an unambiguous lease, to alter the original nature of atenancy by agreement and there possibly may be cases where subsequent conductmay be set up as evidence of such an agreement. But where no such agreement isset up and it is clearly proved that the land was originally acquired by thetenant for cultivating it himself or by hired servants or by members of hisfamily the mere fact that it was subsequently let out to tenants cannot affectthe character of the tenancy and I do not think the learned Judges in the caseof Midnapur Zemindary Co., Ld. v. Sham Lal Mitter 16 C. W. N. 218 (1910)intended to lay down that in every case, even where the original purpose forwhich the land was acquired is clearly shown, the Court must look to thesubsequent conduct or that a tenant who acquires land for his own cultivationand subsequently lets it out to under-raiyats would lose the raiyati rightwhich he originally acquired and convert himself into a tenure-holder asbetween himself and his landlord.

21. The surrounding circumstances and the subsequent conductshould be taken into consideration for determining the original purpose of thetenancy where the same is not clear. Once however the original grant is clearlyshown to be raiyati by a lease unambiguous in its terms or by other evidencewhere there is no written lease, the mere fact that the tenant subsequently sublet the land would not alter the character of the tenancy.

22. In the present case, with regard to the lands in respectof which there are leases clearly showing that the original purpose of thetenancy was the cultivation of the lands by the tenant himself there cannot beany question that the tenancy was a raiyati one and the subsequent sub-lettingcannot affect the nature of the tenancy. As regards the remaining lands,however, it seems to me the determination of the nature of the tenancy is notfree from difficulty. As already stated the letter, dated the 11th Aswin 1234,from the zemindar to the ijaradar recites that 685 bighas had been granted toNandi Mandal by potta and roka. The potta and roka have not been produced, butin the letter the lands are referred to as raiyati. As for the rest of thelands there is no evidence to show whether there was any written lease. I thinktherefore that with respect to lands other than the 485 bighas dealt withabove, the conduct of the parties and surrounding circumstances should be takeninto consideration and the question decided upon the whole evidence. I wouldhave been disposed to attach great importance to the fact that the lands havebeen sub-let since some time more specially having regard to the very largearea of the land which cannot ordinarily be cultivated by a raiyat himself orby members of his family or by hired servants or with the aid of partners. Butthe jotes have been recognized in successive settlement proceedings and inother ways to be raiyati, and under the circumstances of the case I think thePlaintiff should be held to be a raiyat and not a tenure-holder. The appeal isaccordingly dismissed with costs as against the Defendant No. 2, the DefendantNo. 1 to bear his own costs. This judgment governs appeal from original decreeNo. 598 of 1909 the facts of which are similar.

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Raja Promoda Nath Royvs. Asiruddin Mandal and Ors.(20.06.1911 - CALHC)