1. This is an appeal by the plaintiff in a suit for declaration that three entries in a record-of-rights finally published are erroneous and for correction thereof. The three parcels in dispute are those numbered 926, 927 and 937. The defendants are recorded in the record-of-rights as settled raiyats in respect of those lands. The case for the plaintiff is that the lands are not agricultural and, consequently, the status of settled raiyats could not be acquired in respect of such lands. The Courts below have dismissed the suit, though it is difficult to gather from the judgment the precise facts in relation to each of these parcels.
2. It is not disputed that on 27th March, 1839, the predecessor-in-interest of the plaintiff granted a lease for 10 years to Srikanta Saha, the father of the first two defendants. The parcels now in dispute were included in the lease. The real question in controversy is, whether Srikanta Saha was a settled raiyat at the time in respect of one or other of the three parcels, and, if not, whether he or his successors-in-interest have subsequently acquired the status of such a raiyat. We have been informed that before the grant of this lease plots Nos. 926 and 927 were in the occupation of one Ram Kumar Saha. He left the village and these two plots were included in the lease granted to Srikanta Saha. We have further been told that Srikanta Saha was in occupation of plot No. 937 from 1884. These are the statements which have been made before us on behalf of the respondent. But they are not admitted by the plaintiff.
3. It is plain that no question arises as to the applicability of Section 19 of the Bengal Tenancy Act, because there is no suggestion that right of occupancy had been acquired by the defendants before the Bengal Tenancy Act came into force. The status of the defendants must, consequently, be determined with reference to the provisions of Sections 20 and 21 of the Bengal Tenancy Act.
4. Section 20, Sub-section (1) provides as follows: 'Every person who, for a period of 12 years, whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village.' Sub-section (2) provides that a person shall be deemed for the purposes of the section, to have continuously held land in a village notwithstanding that the particular land held by him has been different at different times. Section 21 provides that every person who is a settled raiyat of a village within the meaning of Section 21 shall have a right of occupancy in all land for the time being held by him as a raiyat in that village, The term 'village' has a technical meaning which is explained in Section 3, Clause (10) of the Bengal Tenancy Act.
5. In view of these provisions, it is clear that if Srikanta Saha is alleged to have been a settled raiyat it must be proved that he continuously held, as a raiyat land situated in the village, although the land need not be identical throughout the period of 12 years. The Courts below have not found whether Srikanta fulfilled this condition. It is to be observed that the holding of land is to be continuous and, further, that the holding is to be in the character of a raiyat. This becomes obvious when we turn to the definition of the term raiyat, given in Section 5, Clause (2). 'Raiyat' means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right. The question consequently arises whether plot No. 937 was held by Srikanta Saha as a raiyat for a term of 3 2 years, or, whether, independently of plot No. 937, Srikanta held other lands in the village as a raiyat, for the prescribed period. If, by such continuous holding of land in the village as raiyat, Srikanta Saha acquired the status of a settled raiyat, he might acquire a right of occupancy in respect of plots Nos. 926 and 927, provided he held these parcels as a raiyat. We observe that the defendants have been recorded, not as occupancy raiyat, but as settled raiyats; in other words, it must be shown, in order that the-record may be maintained, that Srikanta Saha or his sons had acquired that status in respect of each of the plots Nos. 926, 927 and 937. But, though the land must be held as a raiyat, this does not necessarily mean that the land should have I been actually cultivated, because land; may be held by a raiyat as his homestead under Section 182. It must be remembered, however, that Section 182 is not applicable unless the land is held as homestead; j in other words, as pointed out by this Court in Dina Nath Nag v. Sashi Mohan Dey (1915) 20 C.W.N. 550, it is not sufficient for a raiyat that the character of land is such as would justify its use as a homestead, it must be established that the land is used by the raiyat as his homestead. These are very material elements in the determination of the controversy between the parties, and the facts found by the Courts below do not enable us to hold that the defendants have the status of a settled raiyat in respect of one or more of the disputed parcels.
6. The result is, that this appeal is allowed, the decree of the lower Appellate Court set aside and the case remitted to the Court of first instance to be re-tried. Bach party will be at liberty to adduce fresh, evidence as to the character and antecedent history of each of these parcels. Evidence will also be admissible to prove the status of Srikanta Saha. The case will be re-tried, however, on the footing that the tenancy originated with the lease of the 27th March, 1889, and the user of land by other persons prior to that date can have no bearing upon the nature of the tenancy created by the document.
7. As the true bearing of the case does not appear to have been appreciated by either of the parties in the Courts below, we direct that the parties do bear their own costs in this Court and the lower Appellate Court. The costs in the Court of the first instance before and after remand will be in the discretion of the Court.