1. I confess that I have had some difficulty with this appeal and the analogous appeals which were argued along with it. I have been greatly impressed with what the Settlement Officer says in his judgment in the present case (paragraph 3) about the origin and special character of these jotes. He says that they are known as khud jotes and he observes with great force that the term is reminiscent of the khud kasht raiyats of an earlier period. He mentions other features in the evidence which go far to show that in the opinion at any rate of the landlord's officers, the tenants of these jotes possess rights which,, to use a natural term, may be described as permanent residential rights. I have a strong suspicion that in spite of their present area the jotes were in their origin raiyati holdings, or they may have grown put of smaller holdings of a raiyati character. The special incidents .now attached or sought to be attached to them by contract resemble very largely the ordinary incidents of a raiyati holding at the present day. On the question however, whether the jotes are tenures or raiyati holdings, we are confronted with the concurrent findings of the Courts below that they are tenures. No attempt was made in the argument before us to displace that finding on any ground open in second appel and it must, therefore, be accepted as final'.
2. In the appeal .before us, the tenant's rights being, as- we must now take them to be, those of a tenure-holder, there is great difficulty in agreeing with the Courts below that the tenure is a permanent tenure. The question is not merely one of fact. It depends at any rate to a large extent on the construction of the kabuliyats executed from time to time by the tenant or his predecessors. It is a question of construction for instance whether the word 'shara-shari' or 'temporary'', which occurs in these documents or some of them, refers to the variability of the rent or the nature of the tenancy. The learned Special Judge in the lower Appellate Court has come to the conclusion that while the tenure is permanent and heritable, the rent is variable and the tenure is not transferable. Now there is no inconsistency ' at all between a' permanent tenure and a variable rent, but permanency and non- transferability are not so easily reconcilable. Section 179 of the Tenancy Act has no application because the tenure is not a mukarari tenure. If the tenure is permanent it falls under the provision in Section 11 of the Bengal Tenancy Act, which says that 'Every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property.' If this section be read with Section 10 of the Transfer of Property Act, it may be that, as the kahuliyats do not provide for re-entry by the landlord in case of breach of the condition against transfer, the condition is in any case void, whether the tenure is permanent or not. But, however that may be, I express no opinion on the point. Taking the terms of the series of kabuliyats as a whole, it is not easy to suppose that the kabuliyats or any of them is either creative of, or refers to, a permanent tenure.
3. The difficulty and responsibility of deciding in the first instance whether a particular tenancy is a tenure or raiyati 'holding' is often, in cases near the border line, enhanced by the fact that if the tenancy is held to be raiyati the tenant will have permanent rights of occupancy, While if it is held to be a tenure it my almost necessarily follow that the tenure is not permanent. The problem is sometimes specially difficult in the case of leases of new lands which are to be brought under cultivation, because the position of the tenant at the inception of the tenancy may be very different from his position, it may be many years later, when the land has been successfully reclaimed and the question arises. At first it may not be to the landlord's interest to deny that the tenant is a raiyat and there may be an understanding, probably on an informal basis, that he is a raiyat. As time goes on it may be very much to the landlord's interest to assert that the tenant is a tenure-holder.
4. The present is a case in point. The dispute between the parties really turns on the question whether the jote is a tenure or a raiyati holding and the decision on this question is not now open to review.
5. On the whole I am forced to the same conclusion as that arrived at by my learned brother and concur in the order which he proposes to make.
6. I may add that the relations between the landlord and his khud jote tenants appear to have been in the past of the friendliest character. I trust that the present controversy will not disturb the excellent relations hitherto existing and will not lead the landlord to treat his tenants with less consideration than he has hitherto done.
7. The judgments delivered in this case will govern the other analogous appeals.
8. In all these appeals the parties will bear, their own costs.
9. This appeal is by the landlord, arid arises outer of an application under Section 106 of the Bengal Tenancy Act. The substance of the application is that the defendant-respondent's interest in a' tenure has been entered in the record as permanent, whereas it should be only, temporary.
10. The defendant, pleaded that her interest' was that of a raiyat, and was permanent. The claim of raiyati interest is no longer under discussion, and the question riow 'is whether the tenure is permanent or not;
11. The Assistant Settlement Officer held that the tenure was permanent. On appeal the' learned Special Judge upheld this decision with the qualifications that the tenure was not transferable and that the rent was liable to enhancement. The landlord now asks us to go further and hold that the tenure is not permanent, A permanent tenure is described in Section 3 (8) of the Act as a tenure which is heritable and which is not held for a limited time.
12. I will deal first with the feature of heritability. Four kabuliyats have been laid before us, one produced by the defendant, and three by the landlord, the first executed in 1250 B.S. (1843 A.D.) and the other three in the years 1277, 1285 and 1295 B.S. Frov the evidence it appears that Rup Nath Das, who executed the first, was a benamidar for Bishnu Charan and that the second was executed by Bishnu's son Biseshwar, and the third and fourth by Biseshwar's widow, the present defendant. The learned Judge holds, and I think rightly, that the descent from father to son, and then to the son's widow', is not enough to establish the fact of heritability and he 6nds that heritability is proved by the oral statement of' plaintiff's first witness. This statement is set out in full by the Settlement Officer, and I need not repeat it. The part of it on which special emphasis is laid is the sentence why should the malik do an injustice by. settling the jote with a new tenant.' ' It appears to me, however, that these words do not go very far. The witness only means that the dead man's heir is recognized as having a moral claim to succeed to his father's rights; he does not mean that the heir has a legal right which the malik cannot ignore. Against this evidence we have the very important omission in the kabuliyats: not one of them contains the words from generation to generation. These words form a well known phrase, and the tenant who claims an hereditary right under a document which does not contain them has a heavy onus to discharge. Not only does the oral evidence just referred to fail to discharge that onus, but the same witness by his reference to the payment of nazarana at least suggests that succession of son to father is not a matter of right, but a matter of grace and payment. In my opinion, therefore, the feature of heritability is not proved.
13. Next as to the words 'which is not held for a limited time.' The finding of the Courts below is that the settlement of the tenure was permanent, but the settlement of the rent payable in respect of it was temporary. It is not necessary to consider whether such a contract is possible, because there are other terms in these kabuliyats which call for remark, and help to decide the true nature of the arrangement.
14. In the first place all the kabuliyats bind the tenant to keep the trees intact; and in the second place they all restrain him from making any transfer of the land. The last three add that he must not partition the lands. In the ordinary way a tenure-holder has the right to cut down trees, and the right of alienation, though not an essential feature of a permanent tenure, is commonly regarded as an invariable incident.
15. Next, the three later kibuliyats speak of a sarasari and like the first they are for a term of years. They contain no clause to the effect that the rent only is temporary: The most that can be said for them is that each in turn gives the tenant the right to enter into a fresh arrangement on terms to be fixed by the landlord. More important than this is the condition in the three later kabuliyats for the landlord's right of re-entry in the event of the tenant not entering into a fresh arrangement. It is true that this condition is not in the kabuliyat of 1250 B.S., but I think the learned Vakil for the appellant is right in asking us to look at the terms of the latest agreement rather than of the earliest. This condition cannot, I think, be reconciled with the defendant's claim for permanency and is by itself sufficient to prove that the tenure is held for a limited time. It seems to me impossible to hold in the face of such a condition that the temporary character of the agreement was limited only to the amount, of rent. On the other hand, it is pointed out that the tenant has been in possession for a long time, and that for a period of 70 years only four kabuliyats, for terms aggregating 29 years, are produced. I fail to see that these facts alter the nature of the agreement between the parties, and it is to be remarked that the first kabuliyat is for an than one fourth of the are an mentioned in the last kabuliyat. Repeated renewals of an agreement do not change the character of ah agreement.
16. It is, I think, equally unsafe to draw any inference from the fact that the landlord has granted settlement again and again to the same man or to his successor-in-interest. Self-interest may be the explanation, or friendly relations between landlord and tenant.
17. In my opinion the decision of the learned Special Judge is wrong, and I would decree the appeal and order the entry in the Record of Eights to be corrected, that is to say, by substituting the word 'non-permanent' for the words permanent and heritable.'