Das, J.In these suits the plaintiff claimed to recover the disputed lands as his private lands. The suits were resisted by the defendants substantially on the ground that they had a right of occupancy is those lands. The learned Subordinate Judge in a very careful judgment has rejected the contention of the defendants and has given the plaintiff decrees substantially as claimed by him.

2. I am of opinion that the decision of the learned Subordinate Judge is right and must be affirmed. The argument of Mr. S.P. Sen is founded upon the decision in H.B. Dalgilish v. Damodar Narain Chowdhury [1909] 8 Cri.L.J. 533. It was held in that case that, the indigo zerait lands, in the absence of evidence to show that the lands were ever in the khas possession of their ancestors, did not come within the definition of proprietors private lands contained in Section 120, Ben. Ten. Act. That was a case purely on facts and the learned Judges dealing with the case had to deal with the evidence that was adduced in that case. So far as that was a decision on facts, it is of no value to us in this case; but if the learned Judges intended to lay down as a proposition of law that in order to claim land as proprietors private land, it has to be shown that such land was in the khas possession of the landlord or his ancestors, I respectfully differ from the decision.

3. Section 120, Ben. Ten. Act, itself provides that in determining whether any other land, that is to say, land other than that which is proved to have been cultivated as khamar, zirait, sir, nij, nijjot or kamat by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continous years immediately before the passing of this Act, or cultivated land which is recognized by village usage as proprietors khamar, zirait, sir, nij, nijjot or kamat, ought to be recorded as proprietors private land, the officer shall have regard to local custom, and to the question whether the land was before the second day of March, 1883 specifically let as proprietors private land, and to any other evidence that may be produced.

4. It is obvious therefore that land may be claimed as proprietors private land which has never been cultivated by the proprietor himself or by his predecessor-in-title. It is quite true that where it is not shown that the land was cultivated by the proprietor himself or recognized by village usage as proprietors private land, there is a presumption that the land is not proprietors private land, within the meaning of Section 120, Ben. Ten. Act; but the presumption is a rebuttable presumption; and it can be shown by the proprietor that though he has never cultivated the land himself, it is nevertheless his private land. In support of this proposition, it is sufficient to refer to the recent decision of the Judicial Committee in Bindeshivari Prasad v. Kesho Prasad Singh AIR 1926 P.C. 79.

5. It is then necessary for us to consider whether there is sufficient evidence in support of the conclusion at which the learned Subordinate Judge has arrived. The plaintiff relies upon the kabuliat of 15th May 1881 executed by Hiralal Matha in favour of Rai Goberdjian Lal Bahadur. I may mention that Rai Goberdhan Lal Bahadur was a, thikadar under the proprietor and it will be noticed that the land was specifically let out as zerait laud. It is well known that in enacting Sub-section 2, Section 120, Ben. Ten. Act, the legislature had before it the attempts which might be expected on the part of the landlords to frustrate the intention of the legislature, as asserted in the draft bill laid before the Council for consideration, to extend the occupancy rights of tenants before the measure then declared to be in contemplation became law; and, therefore, the particular date 2nd day of March 1883, the date on which the draft bill was published in the Gazette, and leave was obtained to introduce the bill into the Council was declared to be the latest date on which there should be free action on the part of zamindars to assert their private rights so as to prevent the accrual of special tenancy rights.

6. See Nilmoni Ghuherbutti v. Byhant Nath Bara [1890] 17 Cal. 466. The assertion in this case was made on 15th May 1881 and the plaintiff relies upon the assertion so made as constituting important evidence in his favour. Mr. Sen contends in the first place that the assertion that the land was indigo zerait or zerait was not an assertion that it was the proprietors private land and in the second place he says that there is no proof that the disputed lands are identifiable with the lands dealt with by the kabuliat of 15th May 1881. So far as the first contention of Mr. Sen is concerned, it is entitled to weight, for it is well-known that in Bihar the term "zerait" is used to denote all lands in direct cultivation of indigo planter for cultivation of indigo as distinguished from cultivation of indigo by raiyats. Hiralal was an indigo plantes and he took the lease in question for indigo cultivation.

7. It seems to me therefore that if there-was nothing else in this document, Mr. Sen would be right in contending that the term zerait as used in this document decides nothing at all. But reading the kabuliat as a whole there is no escape-from the conclusion that the proprietor was in this case asserting that the land was his private land. There is a specific covenant on the part of the tenant that "by reason of our being in possession of the land till the term of the katkena, we shall acquire no occupancy or kashtkari right in the said land."

8. There was therefore, a clear intimation to the tenant that the land was the proprietors private land and that no kashtkari right could be acquired therein; and in executing the kabuliat the tenant accepted that position. It seems to me-therefore, that the kabuliat of 15th May 1881 constitutes a very important piece-of evidence in favour of the landlord.

9. So far as the question of identification-is concerned, there is little to add to the judgment of the learned Subordinate Judge, who has dealt with the matter with great care. A reference to the kabuliat of 15th October 1895 will, in my opinion, put the matter beyond doubt. That was a kabuliat executed by the predecessors-in-title of the defendants. The-critical passage in the kabuliat of 15th, October runs as follows:

The entire mauza Manjhi aforesaid and mauza Siari, Pargana Padri subregistry office and police station Rosra sub-division and district Darbhanga, constituting proprietary interest of Maharaj Kumar Babu Sri Guneshwar Singh was held in Katkena (sub-lease) up to 6 annas instalment, by Gobind Lal Mahtha and others, under Rai Gobardhan Lal Bahadur since deceased, the thikadar (lessee). The said thikadar had let out in Katkena (sub-lease) considerable zirait lands) along with the ziraib lands in other mauza, to the Manji Factory, and the said katkenadar (i.e., the factory) remained in possession of the said zirait lands-up to 10 annas instalment of 1295 Fs. raised indigo crops thereon and surrendered the same by a deed. When the zirat lands in the said mauzas and all the lands in the possession of the indigo concern came into the sir (direct). possession of the said proprietor, they used to be settled by him, for one year, from year to-year and are still in his direct possession. Out of the said zirait lands, we have taken (settlement of).

and then follows a specification of the lands leased out. It seems to me that there is no doubt whatever that the lands which were leased out on 15th October 1895 were part of the lands dealt with by the transaction of 15th May 1881.

10. Mr. Sen contends that even if this be correct, it has not been shown that the lands dealt with by the transaction of 15th October 1895 are identifiable with the disputed lands. But the learned Subordinate Judge has compared the boundaries of the lands leased out on 15th October 1895 with the boundaries of the disputed lands and he had no difficulty in coming to the conclusion that they are identical. It is impossible for us to investigate the matter, because the appellants have not thought it necessary to print the schedules containing the boundaries of the lands. We must, therefore, accept the conclusion of the learned Subordinate Judge on this point.

11. It appears that in the survey proceedings which took place between 1895 and 1897 these lands were claimed by the tenants as their kasht lands and the survey authorities upheld the contention of the tenants and recorded these lands as the kasht of the tenants. The plaintiff says that numerous suits were brought by the landlords as against the tenants for the purpose of contesting the entries made in the Record-of-Rights. In point of form the suits were rent suits; but the question as to the character of the lands arose in view of the defence put forward by the tenants that the rent claimable by the landlord was that which was recorded in the Record-of-Eights as payable by them and not that which is mentioned in the kabuliat of 15th October 1895. Unfortunately the records of those rent suits are not before us. The plaintiff has produced conclusive evidence to show that all those records have been destoyed under specific rules framed in that behalf; but he has produced a paper book of the Calcutta High Court showing that numerous suits were brought by the landlord as against the tenants including those who are the defendants in these suits and that it was decided in those suits that the land was zerait of the malik and not the kasht of the tenants. The learned Subordinate Judge took the paper book in evidence although the tenants objected to the paper book going in evidence. It seems to me that the paper book was not admissible in evidence in the absence of proof that the papers printed in that book were the-true copies of the original documents.

13. But although the paper book is inadmissible in evidence, we have oral evidence in this case, and, in my opinion the oral evidence is admissible as secondary evidence having regard to the fact that the original documents are no longer-available to us. There is no reason to-disbelieve the oral evidence which is to-the effect that the question as to whether the disputed lands are the zerait of the malik or the kasht of the tenants was raised in numerous suits between the parties and that it was held in those suits-that the land was the zerait of the malik. The learned Subordinate Judge says that the decisions in those suits operate as res judicata in this case. I am unable to agree with the learned Subordinate Judge-in this respect. Those decisions were pronounced in rent suits and it is not disputed that the Munsif who tried those rent suits would have no pecuniary jurisdiction to try the present suits. It is obvious therefore that those decisions do not operate as res judicata. Nevertheless there is evidence, and important evidence in favour of the plaintiff.

14. What followed was remarkable. The plaintiffs case is that after the decisions of the High Court holding that the tenants had no rights of occupancy in the disputed lands, the tenants surrendered the lands and took fresh leases in 1310. That they took fresh leases in 1310 cannot be disputed, for those leases are before us. It is denied, however, that there was a surrender by the tenants. It seems to me that the surrender follows from the fact that the tenants took fresh settlements in 1310. There is no satisfactory explanation why they should have taken fresh settlement if they, are right in their contention that the disputed lands are-their kasht lands.

15. In the kabuliats of 1310, there are unqualified admissions of the tenants that the disputed lands are the zerait of the landlord and that no rights of occupancy can be acquired in those lands by them. It is contended by Mr. Sen that the tenants cannot contract themselves out of their rights and that an admission that no occupancy rights can be acquired in those lands profits nothing at all; but I am unable to accept this view, It is quite true that once it is ascertained that the disputed lands are the kasht lands of the tenants, the admission of the tenants is of no avail to the landlord but in order to determine whether the disputed lands are the zerait lands of the malik or the kasht of the tenants the admission of the tenants is admissible against them. It was at one time considered that the admission of tenants as to the zerait character of the land was inadmissible in evidence; but it was properly conceded by Mr. Sen that since the decision of the Judicial Committee in Bindeshwar Prasad v. Kesho Prasad Singh AIR 1926 P.C. 79, the question is no longer arguable.

16. Fresh settlements were taken by the tenants in 1316 in which we have again their admission that those disputed lands were the zerait of the maliks. Those leases came to an end by effluxion of time in 1320; and since then annual settlements were made by the landlord with; them from 1321 to 1325. In 1326 batai settlements were made with them, and the learned Subordinate Judge is right in attaching special importance to these settlements. In or about 1326, a receiver was in possession of a certain maliki interest jointly with the present plaintiff. It appears that the receiver was not agreeable to this batai settlement and the sanction of the Court had to be obtained. All the papers in connexion with that matter are before us and it is impossible to resist the conclusion that the tenants with full knowledge of all the facts accepted the position over and over again that the disputed lands were the zerait of She malik. It was suggested by Mr. Sen that all these admissions were taken by the landlord from the tenants who were their favourite tenants so as to use these admissions as against the other refractory tenants; and that it was never intended that these admissions should at all affect the persons making these admissions. The only evidence in support of this position is to be found in the evidence of Santoki Mahto. He says as follows:

In 1316 I executed kabuliyat as I was favourite tenant of Babu Saheb. But I got no possession over kabuliat land, nor I paid rent for it.

18. It is impossible to understand why he should have executed the kabuliat making important admissions as against him just because he was the favourite tenant of the Babu Saheb. A case of forgery was indeed pleaded in the written statement; but there is no proof in the evidence and it is impossible not to give due weight to those admissions. I hold that it has been satisfactorily established that the disputed lands are the zerait of the plaintiff.

19. The only other question that was raised was that the tenants are not in possession of all the lands claimed by the plaintiff in these suits. It is quite true that according to the Record-of-Rights the tenants are in possession of less areas; but the learned Subordinate Judge has found that after the batai settlement of 1326 the defendants forcibly trespassed into disputed lands in 1327." He refers to documentary evidence in support of his conclusion and it is impossible for us to take a different view.

20. I would dismiss these appeals with costs.

Wort, J.

I agree.