1. This appeal is by the defendants in a suit for the recovery of possession of a plot of land on declaration of the plaintiff's title thereto, and also for the recovery of rs. 60 as the price of the plaintiff's share of the produce for three years. The land in suit measures about three kanis. Admittedly, it belonged to one Govinda. Govinda died leaving a widow and a will. The widow as executrix of this will sold the land to the plaintiff on 29th Falgun 1326 B.S. The plaintiff's title to this land by this purchase is no longer in dispute. Admittedly, the land has been in possession of the defendants from the time of their predecessor, Sk. Ahadi. The plaintiff's case is that Sk. Ahadi came on the land on a labour contract under a registered kabuliyat, dated 29th Magh 1299 B.S. (10th February 1893). The term of the contract expired in Kartic 1301 B.S. Ahadi, however, continued to cultivate the land as a labourer on the same terms till his death, and since his death, his heirs, the defendants, have been cultivating the land as labourers on the same condition. The plaintiff, no longer, considers it desirable to get the land cultivated by the defendants. The defendants claim the land as comprising their tenancy under the plaintiff, and their case is that the land was held by their pre- deeessor Ahadi, and after him, by themselves in a tenancy right under the plaintiff's predecessor Govinda; and it was always so held by them since Govinda's death. The defen. dants claim the status of an occupancy raiyat in respect of their tenancy of the said land. The Court of first instance held that the defendants had a tenancy in the land in suit, and, consequently, were not liable to eviction in this suit. It accordingly dismissed the plaintiff's prayer for recovery of khas posses, sion. On appeal, the Court of appeal below reversed this decision, and decreed the plaintiff's claim for khas possession, holding that the defendants were mere labourers on the land.
2. The present appeal before me is directed against this decision, and the principal question that arises for consideration is whether the defendants have succeeded in establishing their tenancy in respect of the suit land. At the trial, the following facts transpired in evidence,and these are not now in dispute: (1) The defendants' predecessor, Sk. Ahadi came on the land under the terms of the kabuliyat, dated 29th Magh 1299 B.S. (12th February 1893). This kabuliyat is Ex. 1 in this case. (2) The land was full of jungle when Ahadi came on it. He reclaimed it and made it culturable. (8) Ahadi remained in possession of the land oven after the expiry of the term, and continued in possession till his death. (4) About the year 1916, in the cadastral survey record Ahadi was recorded as having a raiyati with occupancy right in this land. (5) On Ahadi's death in about 1918, his heirs treated his interest in the land as heritable and treated this as an inheritance from him. (6) In 1936, the present plaintiff instituted a suit for the recovery of his dues from the defendants in respect of the suit land, and he instituted this suit in the rent file, it being Rent Suit No. 64 of 1936. (7) In 1937 defendant 1 purchased the share of a daughter of Ahadi in the land on the footing that it was a raiyati and paid the landlord's fees as required under Section 26C as it then stood. The landlord on receiving notice of this sale under Section 26C made an application for pre-emption in 1938 in exercise of his right under Section 26P, Bengal Tenancy Act, as it then stood, obviously, on the footing that what was sold was a tenancy and was a raiyati.
3. In coming to the conclusion that the defendants had a tenancy in the suit land, the learned Munsif relied on the conduct of the plaintiff in connexion with the preemption proceeding of 1938 and the rent suit of 1936, and observed that from the said conduct of the plaintiff, it might be said that the occupancy raiyati status of the defendants was admitted by the plaintiff. He also relied on the kabuliyat itself. According to him, the parties to the kabuliyat intended to create a tenancy, and this intention of theirs was substantiated by their subsequent conduct as also by the established purpose of the transaction as evidenced by the kabuliyat.
4. The learned Subordinate Judge, on appeal, held (1) that the kabuliyat, Ex. 1, clearly showed that the defendants' predecessor entered upon the land as a mere labourer burgadar. (2) That the statutory presumption arising from the entry in the cadastral survey record was rebutted by the kabuliyat itself referred to in the record as the basis of the entry. (3) That in the rent suit, the question whether the defendants had any tenancy in respect of the suit land was expressly left open. (4) (a) That the application for pre-emption under Section 26F, Bengal Tenancy Act, at best contained an admission by the plaintiff of the defendants' status as tenant. This admission was only a piece of evidence, and mere admission could not alter the status of the parties otherwise determined by law. (b) That this admission did not amount to an admission in a document executed by him within the meaning of Section 3 (17), proviso (i), Bengal Tenancy Act, as the documents mentioned in the sub-clause are documents of title, like pottas, kabuliyats and the like. The learned Subordinate Judge further held that as the original contract had been proved in this case to be of a labourer burgadar, only, it was not permissible to go into the question of the subsequent conduct for ascertaining the intention of the parties.
5. Mr. Chakravarti, appearing for the appellants, contends: (1) That the Court of appeal below went wrong in holding that the application under Section 26F, Bengal Tenancy Act, was not a document executed by the plaintiff within the meaning of Section 3 (17), proviso (i), Bengal Tenancy Act. (2) That the application under Section 26F, Bengal Tenancy Act, admittedly signed by the plaintiff was a document within the meaning of Section 3 (17), proviso (i) and was executed by the plaintiff within the meaning of that section, and consequently, the admission of the tenancy in it is conclusive as to the existence of the tenancy under the section referred to above. (3) That the Court of appeal below went wrong in saying that the kabuliyat, Ex. 1, of 29th Magh 1299 B.S. was the kabuliyat on the basis of which the entry in the cadastral survey record was made. The kabuliyat referred to in the C.S. record was of a different date. (4) That in view of the admitted fact that the defendants themselves were no parties to the kabuliyat and inasmuch as the admitted possession of the defendants and their predecessor Ahadi after the expiry of the terms of the kabuliyat had to be explained, the Court of appeal below went wrong in holding that it was not permissible to go into the question of the subsequent conduct of the parties for ascertaining the intention of the parties. (5) That the transactions by which and the instances in which the right of tenancy was claimed, exercised and asserted by the defendants and recognised by the plaintiff were admissible in this case to prove the existence of the right under Section 13, Evidence Act. (5a) That the several successive inheritances, the sale of 21st December. 1937, the pre-emption proceeding of 1938, and the rent suit of 1936 were such transactions and instances. (5b) That the evidence of these transactions and instances will fully prove the existence of the right. (6) That the above transactions and instances, along with the admissions involved in the rent suit of 1936, in the receipt, Ex. (a) acknowledging the payments of the decretal amount in the rent suit, as also in the present suit itself all go to establish the tenancy right. (7) That, in any case, the Court of appeal below should have held that the defendants, having been in possession in assertion of their raiyati right since the publication of the cadastral survey record in 1916 acquired the tenancy right by adverse possession for over twelve years.
6. Mr. Choudhury for the respondent contends: (1) That the onus being on the defendants to establish their tenancy in respect of the suit land, and it always having been their case that they were holding under the terms of the kabuliat Ex. 1, the construction of this kabu-liyat is the only question that really falls to be considered and decided in this case. (2) That on a construction of the kabuliat, Ex. 1, the Court of appeal below held that the defendants were mere labourer burgadars, and that the kabuliyat bears no other construction. (3) That as according to the very case of the defendants, the legal relation between the parties was con. stituted by the transaction evidenced by the kabuliyat and as there is no ambiguity in the meaning and intention as expressed in the kabuliyat, the Court of appeal below was right in saying that the subsequent conduct of the parties was not admissible in evidence (4) That Section 3 (17), proviso (i), Ben. Ten. Act, itself indicates that the document contemplated by the proviso is a document by one in favour of another; and that consequently, the application, Ex. C, under Section 26F, Ben. Ten. Act, was not such a document as is contemplated by Section 3 (17), proviso (i) of the Act. (5) That, in any case, Section 3 (17), Ben. Ten. Act, does not mean that as soon as the requirements of the proviso are satisfied, a statutory tenancy will be established; and that the fulfilment of the requirements of the proviso only removes the bar to the establishment of the tenancy, the tenancy yet remains to be established by evidence. (6) That the admissions, if any, involved in the pre-emption proceedings of 1938 and in the rent suit of 1936, were merely evidence against the plaintiff subject to any satisfactory explanation that might be offered by him; that he offered such explanation and that explanation was accepted by the final Court of fact. The decision in this respect cannot therefore be interfered with in second appeal. Section 3 (17), Ben. Ten. Act, defines the term 'tenant' thus:
'Tenant' means a person who holds land under another person, and is, or but for a special contract would, be, liable to pay rent for that land to that person:
Provided that a person who, under the system generally known as 'adhi,' or 'barga' or 'bhag,' cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless-
(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or
(ii) he has been or is held by a Civil Court to be a tenant.
The proviso was added by the Bengal Tenancy (Amendment) Act (Act 4 of 1928) which came into force on 21st February 1929. The application for pre-emption under Section 26F, Ben. Ten. Act, was made on 9th April 1938. This application is Ex. C. in this case. It was verified and signed by the present plaintiff. In para. 2 of this verified application the plaintiff expressly admitted that the defendants' interest in the land was raiyati with occupancy right. According to the case of the plaintiff the defendants were the persons who under the system generally known as 'adhi' cultivated the plaintiff's land. If therefore the application, Ex. C, be a document executed by the plaintiff within the meaning of the above section, then the requirements of proviso (i) will be fully satisfied. Mr. Chakravarty refers me to Section 3 (13), Bengal General Clauses Act (b. C. Act l of 1899) which defines 'document.' The definition is comprehensive enough to' include this application. Mr. Chowdhury, appearing for the respondent, draws my attention to the words in the proviso 'executed in his favour and accepted by him' and contends that this shows which class of documents is contemplated by the section. According to him, only 'documents by one in favour of another' are contemplated by this section. In other words, Mr. Chowdhury invites me to read the words 'any document executed by him' as 'any document executed by him in favour of another.' I do not find any justification for thus reading words into the section that are not there.
7. In my opinion the document was executed by the plaintiff within the meaning of the section when he signed the same as his own document. To say that 'a document was signed by A' and that 'a document was executed by A' may mean somewhat different things. The former would convey the meaning that the act of signing was performed personally by the maker while the latter imports that the maker either signed it himself or authorised someone to sign it for him:
A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names to it. Personal signature is not required, and another person duly authorized, may, by writing the name of the party executing, bring about the valid execution and put him under the obligations involved.
The words 'persons executing' cannot mean 'persons signing.' They mean something more, namely, the person who by a valid execution enters into obligation under the instrument, Puran Chand v. Monmothonath ('28) 15 A.I.R. 1928 P.C. 38, The terms 'signed by' and 'exe cuted by' may not thus be equivalent, though the act of execution involves also the act of signing either by self or by an authorised person. 'Execution' designates the whole ope. ration including signing and conveys the 'meaning of carrying out some act to its com-pletion. The word may thus include the per. formance of three acts, signing, sealing and (delivery, when sealing and delivery are needed for the completion of the document. When the document does not require sealing, its signing either by the executant himself or by some authorised person will complete its execution, and when so signed the document will be executed within the meaning of the section.
8. The question next to be considered is the effect of this admission on the question of the existence or otherwise of the alleged legal relation between the plaintiff and the defendants. The section has been quoted above. Its operation seems to be this: As soon as it is proved that a person cultivates the land of another person under a system generally known as adhi, barga, or bhag, prima facie he is not tenant. He cannot be held to be a tenant by any authority other than a civil Court, unless-(l) he has been expressly admitted to bo a tenant as in proviso (i) or (2) he has been held to be a tenant by a civil Court or 3) is (now) held to be a tenant by a civil Court. In other words, if the question whether or not such a person is a tenant arises in a civil Court that Court can decide the question on evidence before it without the requirement of prior admission as prescribed by proviso (i) or of prior decision of a civil Court as prescribed by the first part of proviso (ii). This will be the effect of the words 'or is' in proviso (ii). If, however, the question arises elsewhere, either before a Revenue Officer or in a rent Court or before any authority other than a civil Court, that authority is debarred from deciding the question unless either there is (1) the required prior admission contemplated by proviso (i), or (2) the prior decision contemplated by the first part of proviso (ii) or (3) any subsequent decision by a civil Court while the matter is still pending before that authority. This last proposition again follows from the words 'or is' in proviso (ii). In my opinion, the section as it now stands cannot be made to mean that as soon as either of the requirements of the proviso is present the person shall be held to be a tenant. The section does not intend to create any statutory tenancy. To read this intention into the section, we shall have to read for the words 'is not a tenant, unless' the words 'is a tenant, if.' This will be reconstruction of the legislative intention, not interpretation, and will be something worse than interpretatio obrogans. Without any such reconstruction the fulfil, ment of the requirements will only remove the bar so that the authority may now proceed to determine the question on evidence. If and when the tenancy will be found it will be a tenancy existing in reality and not a mere creature of the statute.
9. As regards the third point raised by Mr. Chakravarty, it may be pointed out that it is not the case of any of the parties that there was any second kabuliyat executed by Ahadi. On the other hand the defendants have all along relied on Ex. 1 as the only kabuliyat in the case. The date of the kabuliyat as given in the C.S. record was obviously a mistake.
10. The fourth contention of Mr. Chakravarty, however, must be accepted. The plaintiff never made the ease that the defendants ever entered into any express agreement or arrangement with the plaintiff. It is not the case of the plaintiff that these defendants came on the land with the plaintiffs' permission. The land was recorded as comprising, the tenancy of Ahadi. On Ahadi's death, the defendants came on the land as his heirs and held and possessed it openly in their own right as tenants by inheritance. Their possession was thus prima facie adverse. The learned Subordinate Judge was wrong in holding that the defendants came on the land under the terms of the labour kabuliyat Ex. 1. He was wrong in thinking that the status of the defendants was determined by the kabuliyat and consequently no subsequent admission of the plaintiff could alter that status. The kabuliyat, according to the plaintiff's own case, was merely a contract whereby Ahadi agreed to give his labour in consideration of some wages. It would only explain how Ahadi came on the land. Even his possession after the expiry of the period covered by it shall not be explained by this document standing by itself. Subsequent conduct of the parties will therefore be relevant considera tion and will be retrospeetant evidence of the legal relation which the parties intended to create between them after the expiry of the term of the kabuliyat.
11. The fifth and the sixth contentions of Mr. Chakravarty must also be accepted as correct. Ahadi died in 1325 leaving his son, defendant, and two daughters Aiyamannessa and MuL lukjan. All these three persons took the property in question as their father's raiyati and possessed it by right of inheritance. Thereafter Mullukjan died and her husband, defendant 3, and son, defendant 2, came on the land as her heirs. These inheritances and successions were known to the plaintiff and his predecessor and they always accepted the position as will appear from the plaintiff's rent suit of 1936. Thereafter, Aiyamannessa sold her share to defendant 1 in 1937 who served notice on the plaintiff under Section 260, Ben. Ten. Act. The plaintiff on this notice took out proceedings under Section 26F of the Act and in his application under that section expressly admitted that the interest of the transferor was that of an occupancy raiyat. Apart from this express admission the pre-emption proceeding under Section 26F itself implied an admission of the tenancy: vide Section 261 (4) of the Act. Mr. Chakra-varty contends that these facts coupled with the further fact that in 1916 when both Gobinda and Ahadi were alive the interest of Ahadi was allowed to be recorded in the C.S. record as that of an occupancy raiyat conclusively establish the tenancy of the defendants. In my judgment this contention of Mr. Chakra-varty is perfectly sound and must be accepted.
12. Then, again, there is no dispute that at east since 1916 Ahadi and after him his heirs have been in possession of the land in assertion of their tenancy right in it to the knowledge of the plaintiff and his predecessor-in-interest. They have thus acquired a tenancy right in it also by adverse possession. In the result this appeal is allowed with costs. The judgment and decree of the Court of appeal below are set aside and those of the first Court restored. The plaintiff will pay to the defendants their costs in the Court of appeal below also.