1. This is a Letters Patent appeal by the defendants against the judgment of a learned Single Judge of this Court dismissing their appeal. The defendants have lost their case throughout. The case began as a suit in the Court of the Assistant Collector for enhancement of rent. The plaint set out that the plaintiffs are the recorded zamindars of the whole village of mauza Alupur and that the defendants are exproprietary tenants in the village of an area of 21.71 acres consisting of 64 plots; that the former rent of the land was Rs. 47-1-8 and enhancement is asked. The defence was that the relation of landlord and tenant did not exist between the parties, and that Bandhan Singh, husband of Mt. Dhanpatti, defendant 1, and his brother sold their zamindari property under different sale deeds, but the sir plots, grove, house, pond and pasture were excluded from the sale deeds and the vendors remained in possession and occupation of these items of property as absolute owners and that the vendors remained in possession of the sir plots as 'haqiat mutafarriqa' and continued to pay the revenue according to their proportionate shares entered in the khewat, and that the entry in the village papers was wrong, meaning apparently the entry of the defendants in the khatauni as exproprietary tenants of the numbers in suit. It is to be noted that the defendants are not entered in the khewat for 'haqiat mutafariqa' or in any capacity whatever. The Revenue Court referred an issue to the civil Court as to whether the defendants have proprietary rights in the land in question, and the Munsif decided that they have not, and the Revenue Court therefore decreed enhancement from Rs. 40-7-6 to Rupees 50-9-6. The defendants appealed on the ground that they were holders of the proprietary rights, in the sir land, and the lower appellate Court on an interpretation of the sale deeds in question held that this was not so and that the defendants were exproprietary tenants of the land in dispute. The gale deeds in question are as follows: On 19th December 1879, Bandhan Singh, the husband of defendant 1, sold a two-annas share for Rs. 2,000 in favour of Batuk Dayal, and also on the same day sold a one-anna share it favour of Ramsarup for Rs. 1,000. In each of these sale deeds it was stated that the sale was made:
alawa araziat sir wo bagh wo makanat mashunah khud wo pokhri wo charagah maweshian.
2. There is no clear finding as to what entry was made in the village papers subsequent to 1879 but presumably Bandhan Singh and his brother remained entered as holders of sir in the khatauni as they had still one anna zamindari share in the village. On 16th February 1890, Bandhan Singh and his brother executed a sale deed of their remaining one-anna share in favour of Hira Lal, the predecessor of the plaintiffs. In this sale deed it was stated:
Jis qadar arazi sir ek anna hissa mauza Alupur zila Benares Pargana Kara mobaiya me ham muqir ka waqai hai us par ham muqir bataur asaini saqetul milhiatke qabiz rahenge aur lagan uske mutabiq lagan mundarjah jamabandi ke jo us waqt arazi sir par qaem hai hamesha dia karenge.
3. After this the plaintiffs rely on an entry of 2nd July 1894, in regard to a contested case for correction of jamabandi against Bandhan Singh in which there was an entry of exproprietary tenancy. Plaintiffs; further rely on a khatauni which is produced of the year 1307 Fasli, corresponding to 1899-1900 which shows Bandhan Singh as exproprietary tenant of the numbers in suit. On 31st March 1914, Bandhan Singh executed a deed of relinquishment in which he set out that he was the exproprietary tenant of 26.49 acnes at a rent of Rs. 58 and that he relinquished in favour of Hifa Lal 4.17 acres of this exproprietary tenancy, the rent of which was Rs. 10-6-0. The numbers were not mentioned in this deed of relinquishment. The situation therefore was that the entries were of the defendants as exproprietary tenants. It is admitted that the defendants were making payments to the plaintiffs' predecessor to the extent of Rs. 47-1-8 per annum. The defendants alleged that this payment was made as their corresponding share of land revenue and the plaintiffs alleged that it was made as exproprietary tenancy rent. The learned Single Judge of this Court considered that the effect of the first two sale deeds of 1879 was to exempt the proprietary interests of Bandhan Singh and his brother in the sir plots and that the sale deed of 16th February 1890 by which the sir plots were not exempted transferred not only the one anna share sold but also whatever proprietary rights the vendors had in all sir numbers. It will thus be seen that this view was materially different from the view of the lower appellate Court, which was that the first two sale deeds transferred the proprietary rights in the two annas and one anna sold and the rights which remained and were reserved in the sir were only the sir rights, that is the right to hold the land in cultivation as sir, and that all those sir rights then appertained to the one anna share which remained with Bandhan Singh, and his brother. On this view the sale deed of the one anna share on 16th February 1890 naturally transferred all the proprietary rights which were in the vendors and only the exproprietary rights remained in the vendors. Some argument was made on the strength of North Estern Railway v. Hastings (1900) A.C. 260, that subsequent conduct of the parties would not be admissible in the present case. In that case the plaintiff brought a suit on an indenture between the defendant company and the plaintiff and claimed that under the terms of that indenture the defendant company was bound to make certain payments. The defendant company desired to prove that as a matter of fact for 40 years they had not been making those particular pay merits. Evidence to prove that was excluded as the Court held that the terms of the indenture were clear and unambiguous. The claim therefore is made that in the present case the sale deeds in question are clear and unambiguous and evidence of subsequent conduct should be excluded. In the present case the plaintiffs do not sue on the deed in question as the deed does not set out in what numbers the exproprietary tenancy arose but the plaintiffs sue the defendants as their tenants, and the issue is whether the defendants are tenants or proprietors. On that issue it is relevant for the plaintiffs to prove that the defendants have been paying them rent and that they are entered in the village papers as exproprietary tenants. The cases are not at all parallel and it is not clear that the principle of the ruling would apply in the present case. The next question is whether the lower appellate Court is correct in its interpretation of these deeds. The question is not free from difficulty because the language used by the deeds was not clear. It is no doubt open to a proprietor in a mahal to make a sale of a one anna or a two annas share and to exempt his proprietary interest in certain plots in the village. To do so he might specify those plots and say 'Sell a two anna share, but I except plots numbers so and so and so and so.' It is however also possible for a proprietor to sell a two anna share and retain a certain share in the village and then make a provision that all his sir plots should remain in his possession as sir. In that case it is not quite so easy to see what precise language he should use and the expression 'with the exception of sit land' may well be taken to mean that that was his intention. Some difficulty no doubt arises from the fact that along with the sir lands he mentions other matters such as the house and the grove and the pond and in one case the pasture. He may clearly have meant that in regard to the grove and the house and the pond his proprietary interest in these matters would not pass. Again he may well have meant merely that the grove would remain as a zamindar's grove in his possession. We do not know in the present case whether the grove was or was not his sir land. As regards the house, he may have merely intended that he should retain it as a proprietor's house and he may have been indifferent as to whether the purchaser would or would not have an undivided share in the site.
4. The cases of the pond and the pasture are also not particularly clear and all that he may have intended to say was that he would have a right as a zamindar to use the water of the pond for irrigation and also the pasture for his cattle or to obtain a share of what sums were charged by the zamindar for pasturing cattle. His chief interest in the two deeds of 1879 was to retain the land as his sir, so that it remained in his cultivation as a proprietor, and would go into his kura if there was a partition in the Revenue Court. The suggestion of counsel for appellant that he was interested in the rather abstruse legal conception of also retaining his undivided three annas share as well as his undivided one anna share in these numbers seems farfetched. If this was what the words, 'alawa arazi sir' meant, it would not follow 'that he would retain sir rights in these numbers. Yet from his point of view this must have been of much greater importance. The defendants relied on another point that on 31st January 1890 they had sold two bighas odd of sir land for Rs. 250 and subsequently in 1892 there had been deeds of mortgage by them of their sir plots. Had they disposed of a large quantity of their sir in this manner it would have been some indication of what was meant by the different deeds, but the amount transferred was small in proportion to the property with which we are concerned. The only deed of 31st January 1890 was prior to the sale of the one anna share to the plaintiffs' predecessor on 16th February 1890, and therefore it does not appear to affect the interpretation of that sale deed. At the most that sale deed of 31st January 1890 appears to be a transfer of particular plots and at the time Bandhan Singh and his brother were owners of a share in the mahal and if they desired to transfer particular plots which were in their possession they had as much or as little right to do so before executing the deeds of 1879 as after executing them. Reference has been made to a ruling of this Court reported in Bhawani Prasad v. Ghulam Muhammad (1896) 18 All. 121.
5. In that case the plaintiffs were purchasers from the defendants of fourteen annas out of a sixteen annas share in the mahal and subsequently the plaintiffs sued the representatives of their vendor for joint proprietary possession of a certain grove and for damages, of fruit appropriated by the defendants. The defendants pleaded that the land in suit was their sir and that the suit was not cognizable by a civil Court. The Munsif held that the suit was not cognizable by the civil Court. The District Judge held that the defendants were either proprietors or exproprietary tenants and that the civil Court had no jurisdiction. The plaintiffs appealed to the High Court and the High Court held that the defendants who had retained the two annas share must be taken to be exproprietary tenants and that Section 7 of Act 12 of 1881 would apply even where the whole share of the zamindar had not been sold. The Board of Revenue had taken the other view and it held that the language of that section showed that the whole share must be sold. The High Court appeared in this ruling to have considered that if the view of the Board of Revenue prevailed the vendor would be reduced to a very unfortunate position and that he might lose all his sir and not obtain any exproprietary tenancy as long as he kept a small portion. It was suggested that this would arise on a partition. This is incorrect. In partition under the former Revenue Act and under the present Revenue Act, Act 3 of 1901, Section 126, there is a provision that when sir land of one cosharer is placed in the share allotted to another then an exproprietary tenancy arises. The basis of the ruling therefore was incorrect. In any case the ruling was given in the year 1895 and cannot have been in the minds of the parties at the time these sale deeds were executed in 1879 and in 1890. It: is to be noted that under the law as it stood under Section 7 of Act 12 of 1881 there was no clause that the sale of a part of the proprietary interest would, involve an exproprietary tenancy arising in a part of the sir land which pertained to the share sold. Such a clause was introduced into the Tenancy Act of 1902 and into the Tenancy Act of 1926.
6. It is however a matter of doubt as to what exactly is meant by the expression in those Acts, e.g., in Act 3 of 1926, Section 14(2) : 'So much of his sir...as appertains or corresponds to such part of his share.' It is quite possible to hold the view that unless the sir which is retained by a vendor exceeds the area of the mahal proportionate to the share which remains with Mm none of his sir can be said to appertain or correspond to the share sold. I consider that in the present case the defendants have failed to prove that the deeds clearly allowed them to retain any proprietary rights in the numbers in suit. It appears to me that by the earlier deeds their proprietary rights in the two annas and one anna shares sold were entirely disposed of and that in the remaining deeds of a one anna sale the remaining proprietary rights of the defendants were transferred. The ex-proprietary rights in these numbers in suit therefore arose with the sale of 16th February 1890. The parties have all along treated the deeds in this manner and the evidence apparently clearly proves that the defendants are no more than exproprietary tenants. Under the circumstances the lower appellate Court was correct in decreeing the suit for enhancement of rent. I would therefore dismiss, the Letters Patent Appeal with costs.
7. I concur with the conclusion of my learned brother though for a slightly different reason. If the question had arisen under the new Tenancy Act, the matter would been simpler because not only Section 14(2) makes it clear that exproprietary rights accrue even when only a part of a share of a landlord in a mahal is sold, but Section 3 makes a clear distinction between 'sir' which is defined as land recorded as sir and 'sir rights,' which are defined as the sum of all the special rights Conferred on the sir holder. Furthermore, there is a distinction drawn between 'sir right' and 'sir' in Section 7, Agra Tenancy Act.
8. But the sale deed which has to be interpreted is of the year 1879. On the view which was at one time held by the Board of Revenue that no ex-proprietary rights accrued on the sale of a part of the share only, it can be contended with force that when a person owns a four annas share in a mahal and lias certain sir lands appertaining thereto, and he then sells three annas share, he retains his zamindari share to the extent of one anna and all the sir rights which he held before in the lands but these would now appertain to this one anna. The result would then be that when he sells his entire one anna his' sir rights disappear automatically. On the other hand, on the view which was expressed by this High Court in Bhawani Prasad v. Ghulam Muhammad (1896) 18 All. 121 which I think has been subsequently adopted by the legislature, it was open to a person to acquire exproprietary rights even though he held a fractional share in the mahal. It is wholly unnecessary to Consider whether this view was sound or unsound, but there is no doubt that this was the view held by this Court. On that view it would follow that a person could acquire exproprietary rights if he sold three annas out of four annas share which he held, and it was therefore equally obvious that he could very well exempt from the sale any specific plots of land which were held by him as sir lands, with the result that he would not only have the cultivatory rights in these plots, but he would also have exproprietary rights in those plots, and not be compelled to claim exproprietary rights only when the remaining share is sold. It this were not the law, he would get a smaller share in the sir plots at the time of the partition, for less would appertain to one anna than to three annas.
9. Now under the sale deeds of 1879, three annas share in all were transferred and there was an express exception made as regards the sir lands ('araziat sir') the residential house, the well, the tank, and in one case the pasture lands also. The words 'with the exception of sir lands' can have only one meaning, namely, that the sale was not to affect the property which could be, described as sir lands. Now, -even in Act 18 of 1873 which was then in force, 'sir land' was defined as land recorded as sir or continuously held for 12 years or recognised by village custom as' the special holding of the cosharer. The words 'sir land' mean the land itself and not merely the sir holder's rights, namely, the holding of possession only. If therefore the sale deed expressly stated that the sir lands were exoepted, it meant that all the rights which were capable of transfer in those lands were exempted from the sale. The position as regards the sir lands was exactly the same as that in respect of the share in the house, the well, the grove and the tank and the pasture lands. The vendor's shares in these properties could never pass to the vendee.
10. It has been suggested that there was some ambiguity in the document and therefore extraneous evidence was admissible to show the real intention of the parties and to establish what property was being1 sold. In my opinion, this is not the correct law. If there is any patent ambiguity in the document itself, then extraneous evidence is altogether forbidden under Section 93, Evidence Act. It seems to me that where the language of a document is plain and there is no ambiguity in it, it is not permissible to produce other evidence to show that there was a different intention on the part of the transferor. The words 'air lands' are I not in the least ambiguous and therefore fresh evidence cannot be allowed to show that sir lands were not meant but sir rights were meant.
11. The cases of Sital Prasad v. Amtul Bibi (1885) 7 All. 633, Safdar Ali v. Dost Muhammad (1890) 12 All. 426 and Puran Singh v. Dat Ram 1924 All. 447, are authorities for the proposition that when there is a transfer of sir lands the proprietary interest in such lancls passes. It follows that when there is a sale deed which exempts the transfer of sir lands, the proprietary rights in such lands do not pass. I am therefore of the opinion that the view taken by the learned Judge of this Court that the proprietary interest in the plots held as sir lands by the vendor in 1879 were not transferred by the sale deed of that year, is correct.
12. The next question is whether the subsequent conduct of the parties can be taken into account. It now seems to be well established that so far as the interpretation of a document is concerned, the subsequent conduct cannot be taken into account : see Maung Kyin v. Ma Shwe Law 1917 P.C. 207, but the surrounding circumstances can certainly be taken into account : Balkishen Das v. W.F. Legge (1900) 22 All. 149. Now in the sale deed of 1890 the vendor purported to transfer his remaining one anna share. As regards the sir lands he expressly said that his sir rights appertaining to the one anna share would pass. He exempted his interest in the house and the well from the sale. But he did not expressly say that his other sir rights would remain intact and would not be transferred. It is this omission which has been the source of a good deal of trouble. The fact however remains that he does not appear to have asserted his rights as proprietor of these isolated plots and does not appear to have been any steps to have them recorded as miscellaneous properties belonging to him as proprietor. On the other hand, it appears that he allowed his name to be entered by the Revenue Court as an exproprietary tenant in respect of the entire area which had been his sir lands. It might well be that the Revenue Court following the opinion expressed by the Board of Revenue took the view that by the first two sale deeds he had not lost his sir rights in any plot at all and that he became an exproprietary tenant in respect of the entire sir lands when the sale deed of 1890 was executed by him; and it was on that account that they recorded him as an exroprietary tenant. The same vendor in 1914 clearly admitted that he was an enprietary tenant in respect of the entire area out of which he sold 4.78 acres. The reduction in the rent then was also calculated on the basis of the entire area of his exproprietary tenancy.
13. No doubt the subsequent admission made by him is not conclusive and is not irrebuttable, and it is open to him to explain away his admission. It is also quite clear that it does not operate as an estoppel against him. But the fact remains that for the last 40 years he has been recorded as an exproprietary tenant of these plots. The whole history of the events that have passed during this long interval is not before us. Indeed, there is one litigation between the present plaintiff and the widow Mt. Ramkali in respect of exproprietary tenancies in which there is a strong indication that the principal sale deed of 1890 was in question and was interpreted. There are no doubt certain passages which indicate that Mt. Ramkali was the predecessor of the present defendants but the pleadings which would clinch the matter are not before us. The fact remains that the defendant has merely tried to rebut the presumption arising from the admission of 1914 by the fact that in the year 1879 her predecessor did not transfer her proprietary interest in the three annas share. That is not in itself sufficient to show; that she had really not lost her proprietary interest in the plots by 1914. The claim put forward by the defendant is obviously a stale one which she and her predecessor had not asserted for at least two generations, and it cannot be said therefore that she has discharged the burden of proof which lay upon her on account of the previous admission of Bandhan. I accordingly concur with the order proposed.