1. In this case, the plaintiffs brought a suit upon the basis that in 1909, defendant 1 gave a lease to their father of some 99 bighas of land in the Sunderbuns and that in 1917, after the plaintiffs' father had died, defendant 1 dispossessed the plaintiffs from this land so far as regards 50 bighas of it and in 1920 leased out the same again to defendant 2. The suit was brought in 1927 and it has engaged the attention of several Courts; but the actual position at which it has now arrived is that it has been found upon a local inquiry that a quantity of land which was taken possession of by defendant 2 in 1920 did belong to the land let out to the plaintiffs' father.
2. When the matter came before the learned Subordinate Judge on the last occasion, the main point for his determination was whether the suit on that footing was barred by the special limitation provided by the schedule to the Bengal Tenancy Act. That question depends upon whether or not the plaintiffs are raiyats under the lease which their father obtained in 1909. The Subordinate Judge was of opinion--quite correctly--that it was for the defendants to make out their plea of special limitation and he held, upon a consideration of the patta and of the incidents of the transaction, that he was not satisfied that the defendants had shown that the plaintiff's were raiyats. Accordingly he held that the suit was within time and decreed it.
3. On first appeal before the learned District Judge of the 24 Pargannas, the learned Judge pointed out that the only question apart from the question of the quantum of damages was whether it was open to the defendants to take the plea of special limitation and he considered the question whether or not under the patta the plaintiffs were raiyats. He came to the conclusion that the lease was a raiyati lease because it granted a right to hold the land for purposes of cultivation and, on that basis, he gave effect to the plea of special limitation and. dismissed the plaintiffs' suit.
4. We have in this appeal been invited to hold, first of all, that the plea of special limitation is not open to the defendants. On this point it appears to me that the learned District Judge was entirely right in view of the express terms of the Bengal Tenancy Act. It does not seem to me to be possible to say that with the matter investigated, as it has been investigated, it would be open to this Court under Section 184 to shut its eyes to the question of limitation merely on the ground that it was not pleaded so early as it ought to have been. In addition to that fact the plea of special limitation has been on the record though not from the beginning from a comparatively early stage and I have no doubt at all that that plea of limitation must be dealt with.
5. The question is whether the learned District Judge was right or wrong in holding that the plaintiffs' father took a raiyati lease. The terms of the patta are before us and it may be observed, to begin with, that the tenant Ananta Earn Tripathi was a Brahmin and a pension-holder residing in Midnapur. The patta is both maurasi and mukarrari. It recites that the condition of the land is that jungles have been cut and embankments have been made, that the embankments require to be maintained and that there is a good deal of underwood or bushes which require to be cleared. The lease is not in the full sense a reclamation lease because the rough work of reclamation has been done. On the other hand, there was a good deal to do before the land was fit for ordinary purposes of cultivation. We notice that the amount of land is 99 bighas, that the landlord took a selami of Rs. 1,000 and it was provided that the rent should not be payable at all for the first year and that for some years after that the rent should be on an increasing scale. There was a provision as to roadcess etc., which I do not lay any great stress upon and it was provided that, if the tenant did not maintain the bund and clear the small bushes and the landlord or other tenants of his sustained any loss the lessee was to be responsible for the same. The main clause of the patta however, according to the translation with which, we have been furnished by the learned advocate for the appellants is this:
You go on enjoying and possessing the said land by dwelling on the same, by cultivating it, by planting trees etc., by cutting them down, by excavating tanks, by erecting pucca buildings etc, generation after generation with power to transfer by gift, sale etc.
6. There is a provision that, if the land or any part of it is compulsorily acquired by Government, the tenant is to get 10 annas and the landlord 6 annas share of the compensation money. There is also a provision to say that the landlord maintains the right to minerals and a provision preventing the tenant from sotting up any market, ghat and so on. These are the circumstances which are to be found in the document itself.
7. Apart from the circumstances disclosed by the document the position is fairly clear. It seems that some 20 bighas or so have been cultivated by the tenants themselves and that the bulk of it, 75 bighas have been cultivated by bhagchashis. It does not seem as one would expect that the plaintiffs or their father settled tenants upon the land in the sense that people who came there made their living out of that land and settled on it and took an interest in the land. What seems to have happened is that cultivators having some land of their own in the neighbourhood were given some more land by the plaintiffs and they cultivated some of the plaintiffs' land at different periods and gave the plaintiffs a share in the profits. The question is not an easy one in these circumstances to decide and we thought it fair to take time to have it examined in order that the Court might carefully look at the decided cases and consider the various elements which required to be considered.
8. In this case there are good many elements which tell against the plaintiffs being raiyats. Without going outside of what is said by the decided cases and even by the Privy Council, we have the fact that the lessee was a pension-holder a Brahmin and a resident of Midnapur. We find that he paid a salami of Rupees 1,000. Of course a raiyati may be mukarrari. On the other hand in this case he took a permanent lease on fixed terms with the very largest right in the property. The clause which refers to cultivation also refers to dwelling houses being built, tanks being excavated and interest granted from generation to generation with power to transfer by gift or sale-While the lease is not a reclamation lease still it is a lease of land which is in a somewhat primitive condition. In one year, there is not to be any rent and the rent is to be graduated after that.
9. Now the learned District Judge on reading the main clause says: It grants a right to hold the land for the purpose of cultivation.' But the learned Judge does not seem to have applied his mind to the real question under Section 5, Ben. Ton. Act. There can be no doubt that the purpose of the tenancy was cultivation. The question is whether it was cultivation by the tenant himself or by the members of his family or hired servants or with the aid of partners or whether the method to be employed to bring it into cultivation was that the plaintiffs' father should let it out by establishing tenants on the land. In my judgment it would be wrong to read the main clause in the lease as showing that the primary object of this grant was that it was to be cultivated by the grantee himself or his family or hired servants. The clause is really directed to give to the grantee the largest rights; the right to erect dwelling houses, cultivate, excavate tanks and so on. In my opinion it was loft entirely to the discretion of the grantee whether he would cultivate it himself or whether he would let it out to tenants. It must here be observed that while the presumption under Clause (5), Section 5, Ben. Ten. Act does not arise in the sen so that where the holding is under 100 bighas there is no presumption that it is a raiyati interest, nevertheless we do know that where the holding is over 100 bighas there is a presumption that it is a tenure because so largo a holding as that it is not practicable to work by the tenant himself or his family or servants. In the present case, the holding is 99 bighas and it hardly seems convincing to suggest that a pension-holder from Midnapur is intending to cultivate 99 bighas by himself or his family or hired servants. In the case of Secy. of State v. Govind Prasad Barik  29 I.C. 934 both Fletcher and Teunon, JJ., pointedly observed that baghchashis were no hired servants. I think that too much might be made of this point as the definition of a raiyat is not absolutely exhaustive and a bhagchasi is a person somewhere between a hired servant and a partner in those cases, at all events, where he has not been given an interest in the land so as to make him a tenant. But the economic meaning of the transaction which we are discussing is not, it seems to me, that this Sunderbuns land was to be occupied by the grantee or his family or servants. The point is that such land was hardly in a condition that a tenant could make a living by it to begin with. Very probably there was not a supply of land less labourers on the spot but there were people with a certain amount of land of their own who could do with more land if they could get it. Accordingly we find that the plaintiffs' father being able to pay a selami of Rs. 1,000 fulfilled the function of a very useful middleman because he got a right to these 99 bighas and proceeded to give a certain amount of these lands to each of a number of cultivators on the footing that they were bhagchasis and in that way the cultivators got more land than they would be able to get otherwise for their own cultivation. We have here to remember that it was for the defendants who wanted to defeat the plaintiffs' claim to recover a largo quantity of land which the defendants had taken from them to satisfy us that the plaintiffs were raiyats. That is laid down in the case of Tara Nath v. Iswar Chunder Das  11 I.C. 164. In my opinion the true result upon this document and upon the facts disclosed in the evidence is that it is not made out that the holding was a raiyati holding. In (this view it appears to me that this appeal ought to be allowed, the decree of the learned District Judge should be set aside and the decree of the Subordinate Judge ought to be restored with costs before the District Judge and of this appeal.
10. I agree.