Brodhurst and Mahmood, JJ.
1. The plaintiffs in this case are admittedly the zamindars of the land in suit, and the defendant, Kauri Thakurai, is admittedly a person who formerly owned the village, and was in cultivation of certain lands, when, in consequence of his misconduct during the disturbances of the mutiny of 1857, his rights and interests in the village were confiscated by Government, and the proprietary rights came by purchase to the plaintiffs.
2. The plaintiffs came into Court alleging that a few years after the confiscation the defendant-appellant was ousted, and that, by an agreement or kabuliat, dated the 29th June 1874, executed by the defendant, the latter agreed to cultivate these lands for a period of five years, and in executing that document entered into a covenant that after the lapse of five years he, the defendant, would vacate the land.
3. It appears from the judgment of the Lower Appellate Court that the agreement or kabuliat continued, and the defendant remained upon the land as a tenant paying rent to the plaintiffs. The kabuliat above-mentioned appears from the same judgment to have been preceded by a Revenue Court's decree, passed in 1870, for ejectment of defendant; but, as Mr. Ram Prasad for the appellant states, there is not a particle of evidence to show that the decree for ejectment was executed, ex that the defendant was ousted from the land in suit. On the other hand, it is conceded chat he continued to pay rent to the plaintiffs, and, for all purposes, to occupy the status of a tenant towards the landlord.
4. The plaintiffs appear to have made an application to the Revenue Court in respect of the mutation of names, with the object of having it recorded that the status of the defendant was not that of an occupancy-tenant, but only that of a tenant-at-will. On the 24th December 1885, it was decided by the settlement officer that the defendant's position was that of a tenant with a right of occupancy, inasmuch as he had cultivated the land continuously for a period exceeding twelve years, and that decision was upheld by Mr. LaTouche, as the Court of appeal, on the 14th April 1886. In that judgment it was found that 'the parties admitted the status of the defendant to be that of an occupancy-tenant, he having cultivated the land for more than twelve years.'
5. The present suit was begun on the 16th June 1886, in the Civil Court by the plaintiffs-zamindars, with the object of enforcing the covenant contained in the kabuliat of the 29th June 1874, whereby the defendant had covenanted, in taking the lease, that he would vacate the land at the end of five years. Some argument has been addressed to us as to whether or not such a suit was one cognizable by a Court of civil jurisdiction as distinguished from a Rent Court, within the meaning of Section 95 of the Rent Act (XII of 1881). Mr. Ram Prasad argued that the nature of the suit was such as was contemplated by clauses (d) and (f) of Section 95 of Act XII of 1881, but we are of opinion that this contention is unsound, because here the nature of the prayer in the plaint was not that of ejectment, but it was a prayer which required consideration whether the covenant contained in the kabuliat of the 29th June 1874, could be regarded as valid. The suit was therefore of a civil nature, and in this view we are supported by the ruling in Lalji v. Nuran I. L. R., 5 All., 103, to which the Lower Appellate Court has also referred.
6. The same ruling has, however, been understood by the Lower Appellate Court as justifying the conclusion that because the present defendant in executing the kabuliat of the 29th June 1874, promised to vacate the land at the end of five years from that date, therefore he should be so ejected. One of us was a party to that judgment, and, reading the ruling as we do, we are of opinion that the case is no authority for maintaining that where a person already possessing a right of occupancy promises to vacate the land at some future period (in this case it was five years), such action is to be regarded as a contract of relinquishment. All that the case laid down was that an occupancy-tenant, or indeed any kind of tenant, could, if he pleased, leave the land alone and relinquish it so as to render the right of the landlord available to him for the purpose of securing the cultivation of the land.
7. Here it was admitted before the settlement officer by the respondents in the case to which reference has already been made, that the defendant was an occupancy-tenant at the time when the kabuliat of the 29th June 1874, was executed. Such right no doubt depends on continuous cultivation extending beyond twelve years, and in giving rise to the right the provisions of Section 6 of the old Rent Act (X of 1859) were no doubt applicable. But at the time when the kabuliat was executed, namely, the 29th June 1874, there existed the Rent Act (XIII of 1873), the policy of which enactment was to prevent the extinction of occupancy-tenure, so much so that Section 9 of the enactment, reproduced in Act XII of 1881, prohibited transfer of such tenures; or, in other words, continued the right of occupancy to one who would hold on to the land and continue to cultivate it.
8. This is not therefore a case in which there has been any actual relinquishment of the tenure by the defendant, because, as a matter of fact, he has not relinquished the tenure. This is not a case in which the relation of landlord and tenant between the parties is denied by either of the parties to the litigation. This is a case in which the right of landlord and tenant being admitted, the plaintiffs seek to enforce the covenant contained in the kabuliat of the 29th June 1874, in such a manner as to extinguish the rights of occupancy which are found, upon the facts of the case, to belong to the defendant.
9. In our opinion such a suit cannot prevail. The policy of the law was to make occupancy-tenures firm, to give fixity of tenure to those who had cultivated the land for a period exceeding twelve years, and there are provisions in the Rent Act of 1859, as also in the Rent Act of 1873 and again in the present Rent Act of 1881, which go to show that such tenures are regarded with care by the Legislature, and that the ouster of persons having rights of occupancy is not to be allowed even where persons having such rights promise to relinquish the land under an agreement such as that of the 29th June 1874. The Court therefore could not have enforced the ejectment of the defendant. The Court of First Instance was therefore right in dismissing the claim as to the enforcement of the forfeiture clause of the kabuliat of the 29th June 1874.
10. Mr. Madho Prasad, in defending the appeal, has asked us to remand the case for trial of the specific question as to whether or not the decree of 1870 was ever executed, and as to the various questions arising from it, with reference to the rights which the plaintiffs as zamindars may have in connection with the land and against the defendant-appellant. We are of opinion that the relation of landlord and tenant being admitted, proved, and shown in the case, and also the kabuliat of the 29th June 1874, upon the ground of which alone such a suit could be maintained in the Civil Court, the remaining questions as to whether the defendant could be ousted is a matter, not for the Civil Court to determine, but for the Bent Court to deal with. There may be such remedies as Clauses (d) and (f) of Section 95 of Act XII of 1881 contemplate, and those remedies may still be open to the plaintiffs-respondents. They may, having admitted the defendant to be their tenant, either seek to enhance the rent, or seek to recover payment of such rent, or upon failure of such payment to enforce a decree for ejectment. These are questions for the Rent Court and not for the Civil Court, and we are not concerned with them. The result of this view is to decree the appeal, and reversing the decree of the Lower Appellate Court to restore that of the Court of First Instance with costs in all the Courts. We order accordingly.