M.C. Ghose, J.
1. This is an appeal by the plaintiffs. The suit was for partition, on the allegation that Neamatulla had a raiyati jote in respect of the lands in suit and that he died leaving as heirs two sons and two daughters. The suit was instituted by the heirs of one of the daughters claiming a partition and separate possession of their share. The trial Court decreed the suit. The Court of appeal has reversed that decree and dismissed the suit. Hence the appeal by the plaintiffs. Upon hearing the learned Advocates on both sides and upon a perusal of the papers, the facts appear to be as follows: The land in suit was occupied by Neamatulla for about three years before his death which took place about 1893. After his death in 1895, defendant 1, who was the major son of Neamatulla executed a fresh kabuliyat in favour of the landlord and took settlement of the land in suit for a period of five years. Defendant 1 has since then been in possession of the lands. The other three children of Neamatulla were minors at the time. All of them were brought up by defendant 1 who gave away his two sisters in marriage and also provided a wife for his younger brother who, however, died shortly afterwards.
2. The first question decided by the Court of appeal is that the plaintiffs never had any actual possession of the suit lands and they are, therefore, not entitled to maintain the suit for partition. Upon that finding by the Court of appeal, the plaintiffs, with the permission of the Court, amended the plaint and paid ad valorem court-fees praying that their title be declared and they be given possession of their share. The Court of appeal thereupon considered the question of title and came to the conclusion that the plaintiffs had failed to prove that they inherited the jote on the death of Neamatulla. It is urged by Mr. Das in appeal that the landlords' papers of 1296-1297 B.S. show that Neamatulla had a jote under the landlords. He argues that the terms 'jote' means a raiyati holding and, therefore, Neamatulla's holding must have been a raiyati holding either with or without the right of occupancy; if an occupancy raiyati holding, it was heritable under the Bengal Tenancy Act and if a non-occupancy raiyati holding, then also it was heritable in view of the decision in the Full Bench case of Midnapore Zamindary Co., Ltd. v. Hrishikesh Ghosh AIR 1914 Cal 757. In that ease the defendant tenants were in occupation of the land for a period of 16 years when the landlords sued to eject them on the ground that they were non-occupancy raiyats and liable to be ejected. The Full Bench held that apart from possible exceptions with which they were not concerned, the holding of a non-occupancy raiyat was heritable.
3. The question is what sort of a right did Neamatulla have in this land. The judgment of the appellate Court shows that the only indication of his right is the expression 'jote'. It was held in the case of Midnapur Zamindary Co., Ltd. v. Naresh Narayan Roy AIR 1922 PC 241 that the term 'jote' is a general term and is not necessarily equivalent to a raiyati jote. In my opinion the mere expression jote' would not necessarily lead to the inference that the right of Neamatulla was heritable. It must be borne in mind that the onus of proof is upon the plaintiffs who claimed a share of the land in right of inheritance. It is for them to prove that the right of Neamatulla was heritable. The Court of appeal below has found that the evidence did not show that Neamatulla had occupancy right in the lands or that he was a settled raiyat of the village. Having regard to the state of evidence, he came to the conclusion that it was not proved that Neamatulla's heirs automatically were entitled to succeed to the lands on his death. I am of opinion that he was correct to hold that the plaintiffs had failed to show that the rights of Neamatulla were heritable. On this finding the appeal is concluded. I think it necessary to add that if the plaintiffs had proved that Neamatulla's rights were heritable, then the mere fact that the defendant took fresh settlement two years after the death of Neamatulla would not destroy the heritable rights of his brothers and sisters. The appeal is dismissed with costs.
4. I agree.