1. Plaintiffs Nos. 1 to 3 are purchasers from one Piru Manjhi and plaintiff No. 4 is a purchaser from the other plaintiffs. The purchase of the former was on the 21st Falgoon, 1305. Defendants Nos. 1 to 3 are purchasers from one Indra Dass. The other defendants are settlement-holders. They are in possession. The defendants' purchase was on the 28th Aswin, 1302. Indra Dass was admittedly a tenure-holder directly under the proprietors. The whole question involved depends upon the ascertainment of Piru Manjhi's right. If he was a tenure-holder, the plaintiffs should succeed. If he was an under-raiyat or even an occupancy raiyat the suit should fail.
2. Piru's title-deed, Exhibit D, is a kabuliat of 1292 executed in favour of Indra Dass. It appears from the kabuliat that the whole of Mauza Ranjannagore was let out to Piru excepting the jote of Bakranata Bagdi. The area appears to be about 500 bighas. The learned Subordinate Judge found that there were some Santhal and Bhuia residents at Ranjannagore before Piru took settlement and Piru was himself a resident of Ranjannagore when he executed the kabuliat. The document is beaded as korfa jami jamar kabuliat patra. It is clear from the document that the interest whatever it was to be heritable. There is not a word in the whole of the document that the land was let out for purposes of cultivation. There is a passage in the document which has been translated thus--I shall attend to the several duties appertaining to the Police.' It appears that Bakranata long prior to the date of this document had obtained a lease from the proprietors, then represented by the Court of Wards, which accounts for the exclusion of his jote. The learned Subordinate Judge came to the conclusion that Piru's right under the deed was that of an under-tenure-holder. The learned District Judge has held in appeal that Piru's tenancy was a raiyati holding and not a tenure on the following grounds: That the word 'korfa' although it means 'under' or 'subordinate' the settlement created was not the interest of a tenure-holder, because (1) the plaint alleged that the word 'korfa' had been used in the pattah erroneously, advantage having been taken of Piru's ignorance who was not in fact a 'korfadar.'' (2) In Piru's sale-deed to the plaintiffs Nos. 1 to 3, Indra Dass' interest is described as 'madhya satwa', intermediate interest or tenure., but that Indra Dass' interest was certainly not intermediate or a middleman's interest. (3) That in various subsequent documents Piru's interest has been recited as 'prajai satwa' and that in particular plaintiff No. 1 in a deposition so late as the 24th May 1904 stated that Piru's interest was a transferable occupancy right. He, therefore, infers that the plaintiffs have purchased only an occupancy holding. In discussing the question as to what the tenancy was at its inception, he says, he has arrived at the above conclusion, that was a raiyati tenancy, by a process of exclusion from the documents above mentioned. He further says that by consideration of the positive side of the question', he arrives at the same conclusion. He finds that the object of taking the land was to bring it under cultivation not by establishing tenants on it, but by members of his family and that Piru 'was a man of the cultivating class and that the persons who were sought to be proved as tenants were all his relations, and the inference was more in favour of his having taken their assistance as members of a family in bringing the land under cultivation than of his having settled them as tenants within the meaning of the Bengal Tenancy Act.' It is not disputed that the law relating to the matter as it stands at present, is that if the inception of the tenancy is clear, and the document creating the tenancy shows what it is, subsequent conduct or dealings need not be considered. It is only when no clear conclusions can be arrived at from the document that, subsequent conduct or dealings are necessary to consider. The learned Vakil who has very ably supported the judgment of the District Judge, submits that although there is nothing in the document expressly stating that the settlement was for the purpose of cultivation, yet such an inference is to be drawn from the fact that Piru's occupation is described in it as that of a cultivator. The expression, however, in the document is that his occupation was 'chash adi' cultivation, etc. He next submits that although an inference may be drawn from the document that the settlement is heritable, yet there are no express words making it heritable. Thirdly, that the clause about the Police service has not been happily translated as according to him, it really means that he is to assist the zemindar in rendering Police service.
3. Then he relies upon the following clause in the document, arguing that it cannot refer to a permanent tenure: If there be any increase in the 'bira and kadar' I shall add the amount over the rent and pay accordingly.' He translates the expression 'bira' as succession of crops and 'kadar' as rates. The appellants have translated it as meaning area and rates. The clause appears to mean 'i there is improvement, and the value of the land increases, I will pay more,' but this clause does not in our view affect the general import and int(sic) of the document, namely, that it created a heritable under-tenure.
4. It appears that the learned Judge has wholly overlooked the fact found by the Subordinate Judge that there were Santhal and Bhuia residents in the mauza before Piru took settlement and that Piru himself was a resident. He does not say he was a cultivator, but a man of the cultivating class. He established bustees and tenants, and tenants were there before him. The document according to us shows that an under tenure was created. If it was merely a raiyati settlement, as now argued, there would be no meaning in the expression 'korfa.' The learned Vakil says that it is to be understood in the sense that the tenant was under or subordinate' to the grantor, as he was to pay rent to him. This seems to us to be a misapplication of the word. It is not used ordinarily in that sense. The tenure is clearly heritable and the clause about the Police service supports the conclusion that a permanent under-tenure was created. The presumption arising out of the area settled is no doubt rebuttable, but we do not see that it has been rebutted. An entire village where persons were residing was settled. Subsequent admissions or statements made by Piru or the plaintiffs do not in our view affect the question. We know that transferable occupancy rights are often more highly valued by the tenants than under-tenures. We, therefore, confirm the decision of the learned Subordinate Judge and decree this appeal with costs.