1. This appeal is by the plaintiff in a suit for recovery of possession of the property described in the schedules to the plaint by ejecting the under-tenants on the avoidance and annulment of their under-tenures. The lands in dispute appertain : to Noabad Taluk Krishna Chandra Gokul Chandra Adhikari, which is touzi No. 34529 of the Chittagong collectorate. It is not disputed that this taluk comprises two mouzas, namely Mouza Kokdandi and Mouza Jungle Kokdandi. The plaintiff is the purchaser of the touzis at a sale held for arrears of revenue under the Bengal Council Act, 7 of 1868. The plaintiff purchased the touzis on 26th June 1936 and took possession on 29th May 1937. He instituted the present suit on 6th April 1938. His case is that under the touzi there was an etmam Lakhi Chandra Dutta bearing a rental of Rs. 26-4-0. This etmam so far as it related to Mouzah Kokdandi was recorded in Khatian No. 776 of the revisional survey and so far as Mouzah Jungle Kokdandi was concerned it was recorded in Khatian No. 151 of the same revisional survey. The lands of Mouzah Kokdandi are given in Schedule 1 of the plaint and those of the other mouzah are given in Schedule 2. According to the plaintiff this etmam was an under-tenure liable to avoidance and annulment within the meaning of Section 12, Bengal Council Act, 7 of 1868, and he purchased the touzi with title to avoid and annul this under-tenure. There were altogether 13 defendants in this case. Of these defendants, 1 to 5 appeared and contested the claim by one written statement and defendants 6 and 7 contested the suit by another written statement. The case of the defendants is that the plaintiff is a mere benamidar of the defaulting proprietor of the touzi and as such has no right to avoid and annul the under-tenure; that these defendants have raiyati interest in the lands of the two schedules and consequently the same are not liable to annulment and avoidance e. that the etmam in question is protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868.
2. The first Court dismissed the claim of the plaintiff in respect of the lands of Schedule 1 holding that the same constituted a raiyati of the defendants. The controversy between the parties so far as the lands of this schedule are concerned is now at an end. As regards the lands of Schedule 2 of the plaint the first Court decreed the plaintiff's suit holding (1) that the plaintiff was not a benamidar of the defaulting proprietor; (2) that the etmam in question was not protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868; (3) that the lands of Schedule 2 were khas lands appertaining to this etmam: and (4) that the defendants failed to prove their raiyati interest in the lands of this schedule. On appeal by the defendants the Court of appeal below dismissed the whole suit of the plaintiff holding that the etmam in question was protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868 and that the defendants had a raiyati in respect of the lands of Schedule 2.
3. Mr. Choudhuri, appearing in support of the appeal, assailed the judgment and decree of the Court of appeal below on the following grounds : (1) That in holding that the etmam was protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868, the Court of appeal below went wrong in its interpretation of the clause. (2) That in arriving at the conclusion that the defendants had a raiyati interest in the lands of Schedule 2 of the plaint the Court of appeal below went wrong in starting with the erroneous assumption that the Touzi No. 84529 was identical with the old Touzi No. 1729: that as a matter of fact there is absolutely nothing on the record of the present case to establish this identity. (3) That the finding arrived at by the Court of appeal below that the defendants had a raiyati in respect of the lands of Schedule 2 is not sustainable, the same being based on evidence not legally proved in the case. There is no substance in the third point raised by Mr. Choudhuri. Mr. Choudhuri contends that Ex. c, a copy of the plaint in a previous suit inter partes, has not been legally proved in this case. Exhibit e is a copy of the plaint in a previous suit served on the defendant in that suit and the said defendant himself has proved it. The evidence on the point has been placed before me and in my opinion the document has been fully proved by this evidence. This objection therefore has no substance and it does not appear to have been taken in the Court of appeal below.
4. The other two contentions of Mr. Choudhuri are however of much substance and must be given effect to. The Court of first instance held that the old Touzi No. 1729 was not shown to be identical with the present Touzi No. 34529. It appears that neither in the pleadings nor in the evidence this identity was ever suggested. In order however to find that the defendants had raiyati in the lands of Schedule 2 of the plaint the Court of appeal below started with the assumption of the identity and its whole judgment on this point seems to have been influenced by this assumption. In my opinion, this finding thus arrived at cannot be allowed to stand. Mr. Choudhuri contends that the two touzis are not identical. Mr. Rakshit, appearing for the defendants-respondents very fairly concedes that there has been this difficulty in this part of his case. He, however, contends that as a matter of fact the Touzi No. 84529 is identical with the old Touzi No. 1729 and that this was not even challenged by the plaintiff at the hearing of the suit. It is difficult to say what exactly happened in c this respect at the hearing. In my opinion, the ends of justice would require that the parties should be given an opportunity of establishing their respective cases now made before me on the point. As regards the first point urged by Mr. Choudhury the relevant portion of Section 12, Bengal Council Act, 7 of 1868, runs thus:
The purchaser of any tenures sold under the provisions of Section 11 of this Act shall acquire it free from all encumbrances...and shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants with the following exceptions....
Thirdly, tenures...recognised by the settlement proceedings of any current temporary settlement as tenures bearing a rent which is fixed for the period of such settlement.
5. What happened in the present case is that at the revisional settlement of the year 1930, the etmam in question was recorded as a permanent tenure with rent liable to enhancement. There was a further note in the column for special incidents in the following terms:
Not binding against Government for the purpose of assessment : the profit of the tenure has come out of the profit of the superior landlord.
6. The question is whether this amounts to recognition of the tenure as required by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868, given above. The learned Munsif held that the above note in the record clearly indicated that the tenure was 6 not recognised by the settlement proceedings within the meaning of the excepting clause. He relied on Lakhindra Barua v. Saroda Charan Dey ('14) 1 A.I.R. 1914 Cal. 852. On appeal the learned Subordinate Judge took just the contrary view. According to him the note in the revisional survey record indicated that the tenure was recognised for every purpose excepting that of assessment of the Government revenue of the superior taluk and that this was recognition within the meaning of and as contemplated by the excepting clause of Section 12 of Act 7 of 1868. He relied on para. 437, Bengal Survey and Settlement Manual of 1935 and held that tenures of the class contemplated by Clause (2) of the paragraph will be tenures not recognised by the settlement proceedings within the meaning of the excepting clause : but that tenures of the class contemplated by Clause (1) of the same paragraph will be tenures recognised by the settlement proceedings within the meaning of the excepting clause. The excepting clause requires that the tenure must be recognised 'as a tenure bearing a rent which is fixed for the period of such settlement.' A tenure is recognised 'as a tenure bearing a rent' only when its rent is recognised for the purpose of the temporary settlement in question. This will happen only when the rent of the tenure is taken as the profit of the estate (in this case, the Noabad taluk) for the purpose of settling the revenue to be payable by the latter for the period of the settlement. The word 'recognition' as used in the excepting clause clearly indicates something more than a mere record of a fact found to exist and the words 'as bearing a rent, etc.' must be given some significance. The first thing upon which man is said to economise is 'thought'; but the first thing upon which a legislature is supposed to economise is 'language.' It is therefore, a good general rule of interpretation of a statute that one should not without necessity or some sound reason, impute to its language any superfluity. When the rent of the tenure is accepted as the basis of assessment it is then and then only that the existence of the tenure as bearing that rent is acquiesced in and is sanctioned by the settlement proceeding. The notion of such acquiescence in or sanction of the factum of its existence is conveyed by the word 'recognition' as used in the section. The question of recognition in every such case, therefore, will have to be answered by investigating whether or not in settling the revenue of the estate the rent of the subordinate tenure in question was taken as the profit of the former.
7. Neither the note in the revisional survey record nor the instruction for such note as conveyed in para. 437 of the Bengal Survey and Settlement Manual will completely answer this question. Paragraph 437 will no doubt help the interpretation of the note made in any particular case but the note will only be a piece of evidence, the real factum probandum being whether or not the rent of the tenure was accepted by the settlement proceeding as the profit of the estate for the purpose of settling its revenue. Clause (1) of para. 437 so far as it goes, rather shows that when a tenure is not to be recognised to the extent mentioned above then only the note specified therein shall have to be made. The clause runs as follows:
When the draft record of rights contains a tenure which is valid in all other respects but which does not...operate against Government for the purpose of reducing the revenue demand of the estate such tenure will appear in the settlement rent-roll and a rent will be fixed for it. The profit of the tenure will, however, come out of the profit of the landlord who created it and a note will be made in the column for special incidents not binding against Government for the purpose of assessment : the profit of the tenure has come out of the profit of the superior landlord.
8. The clause contemplates that class of tenure which cannot operate for the purpose of reducing the revenue demand of the estate. This, in my opinion, means and refers to a tenure which is to be ignored for the purpose of assessing the profits of the estate. Suppose the profits of an estate is Rs. 500. Then a tenure is created by the proprietor in respect of lands covering a profit of Rs. 100 but reserving a rent of Rs. 50 only for the tenure. If the tenure is recognised for the purpose of assessing the profits of the estate then the profits will be only Rs. 450. This will reduce the revenue of the estate. Ignoring the tenure for this purpose, however, the profit of the estate will still remain Rs. 500, which will leave the revenue of the estate undiminished. The clause thus contemplates a tenure which is to be ignored for the purpose of assessing the profits of the estate. It follows, therefore, that when a note as contemplated by the clause is made in the case of a particular tenure the record prima facie shows as a special incident of that tenure that it is not recognized by the settlement proceeding, within the meaning of the excepting clause of Section 12, Bengal Council Act, 7 of 1868. But this only raises a presumption to the existence of this special e incident. In spite of such note it will be open to the tenure-holder to show that the tenure was recognised in the above sense and that its rent was taken as the basis of the assessment of the profits pf the estate.
9. In the result, therefore, this appeal is allowed so far as the lands of schedule 2 of the plaint are concerned and the judgment and decree of the Court of appeal below to that extent are set aside. The case is remitted to the Court of appeal below with the following directions:
(1) The Court of appeal below will allow the parties to adduce evidence as to the identity or otherwise of the two Touzis Nos. 34529 and 1729 and shall come to a decision on the point : if the Court hold that the two are identical then the finding as to the existence of the defendants' raiyati in respect of the lands of Schedule 2 will stand and the suit shall be dismissed.
(2) If, however, the Court is not satisfied as to the two touzis being identical then it shall proceed to see whether the existence of the defendants' raiyati in respect of the lands of Schedule 2 has otherwise been established; if so, the Court shall again dismiss the plaintiff's suit.
(3) The Court shall allow the parties to adduce evidence as to whether or not the etmam in question was recognized by the settlement proceeding in the sense indicated above; if the Court is satisfied that it was so recognised it shall again dismiss the suit of the plaintiff.
(4) If, however, the Court finds that the etmam was not so recognised and that the defendants have failed to establish the existence of their raiyati in respect of the lands of schedule 2 of the plaint the Court shall decree the plaintiff's suit in respect of the lands of that schedule.
(5) Costs will be at the discretion of the Court of appeal below, and
(6) Parties will bear their own costs in appeal.