1. The plaintiffs in this suit allege that they are ticcadars of two estates bearing Touzi Nos. 5672 and 5674, and of a moiety of another bearing Touzi No. 5518 in Mouzah Charo under a lease bearing date the 15th December 1901. The lease, it is stated, took effect retrospectively from 1307 Fusli, that is to say from 1900. Prior to the plaintiffs taking this lease the whole of the Kilas Nos. 5672 and 5674 and half of Kita No. 5518 were under lease to Digambur Singh from 1284 to 1291. He sublet them to the Jitwarpur Factory, of which the Almasnugger Indigo Factory was an outwork under a registered Katkena lease dated the 19th October 1876. The lease to the Factory ran up to the end of Digambur's lease, namely to 1891. On the expiry of that lease the defendant 2nd party and his mother who were the landlords gave a lease of certain properties including these three at present in, suit to defendants 1st party the proprietors of the Almasnugger Factory, on the 19th of October 1884, for 15 years, running up to September 1899.
2. The case for the plaintiffs was that the defendants 1st party took possession of 33 bighas, 17 cottahs, and 2 1/2 dhoors of land in the three estates and cultivated indigo in them during the period of their lease, and in the survey papers of 1305 to 1306 Fusli these lands were entered as zerait lands in possession of the ticcadars, defendants 1st party. The defendants 1st party were bound by the terms of the lease to give up on its expiry all lands occupied by them on which they were cultivating indigo, but in spite of that condition the defendants 1st party have remained in possession of the 33 bighas odd of land up to the date of suit. The plaintiffs, as lessees from the landlord of the three properties, claimed to be entitled, to obtain possession of these 33 bighas odd of land from defendants 1st party, on the allegation that they were zerait lands. The suit was brought to recover possession and for mesne profits.
3. The defence of the defendants 1st party was that the plaintiffs were not entitled to eject them without a proper notice. They admitted holding the lands in suit, but alleged that those lands had never formed the maliks khudkasht. They alleged that they had been in possession of the lands for over 12 years as tenants, and so had acquired rights of occupancy, and they had been entered as tenants with such rights in the survey papers, and, therefore, the plaintiffs, were not entitled to eject them. They further alleged that as regards 2 bighas 2 cotthas and 3 dhoors of land mentioned in the plaint, the land was in possession of Ramrup Mahton, plaintiff No. 17, as their sub-tenant, his father having sold his occupancy holding consisting of 6 bighas odd to them, defendants 1st party, and they having subsequently sublet the 2 bighas odd to Ramrup Mahton.
4. In the lease on which the plaintiffs rely as giving them their right to eject the defendants, the land in suit is described as zerait land of which the lessors have a right to direct possession and other lands, 11 bighas, 7 cottahs and 6 dhoors in area were in that document exempted from the lease under the description of 'hat' and old zerait land.'
5. Seven issues were framed in the suit, but no issue was framed to determine the point whether the lands claimed were raiyati lands, or khudkasht, or maliks' zerait lands. The defendants 1st party put in a petition, after the hearing of the suit had commenced, asking that an issue on this point might be framed; but no such issue was framed, nor has any finding on that point been arrived at by the Judge of the lower Court on the evidence.
6. The Subordinate Judge has given the plaintiffs a decree to recover possession of the lands in suit with mesne profits and the defendants 1st party have appealed.
7. The Subordinate Judge in his judgment has noticed that the lands claimed by the plaintiffs are described in the plaint as zerait lands and that they are so described in the plaintiffs' lease but because in the survey papers they were entered as 'bakhast' of the ticcadars he has concluded that the lands were never treated as zerait properly so called. After arriving at that conclusion and after the plaintiffs had examined two witnesses to prove their lease, he has thrown the onus on the defendants 1st party to prove that they had a title as tenants which would save them from ejectment.
8. The learned Counsel for the defendants 1st party has contended that the Subordinate Judge was wrong in arriving at that conclusion contrary to the allegation in the plaint and in throwing the onus on the defendants 1st party, to prove their title before requiring the plaintiffs to substantiate their title. He has argued that the whole object of the present suit is to establish the right of defendant 2nd party to the lands as their zerait lands and that the plaintiffs have been brought in as nominal ticcadars avoid the presumpt which would have arisen against the landlords under the provisions of the Bengal Tenancy Act if they had brought the suit claiming the land their zerait and he has suggested that if the suit succeeds the defendants 2nd party will undoubtedly get rid of the plaintiffs.
9. Further the learned Counsel contends that his client Mr. Manners has been prejudiced by the course which the Subordinate Judge has adopted in requiring the defendants 1st party first to prove their title. It seems that after the lease of the plaintiffs had been proved, Mr. Manners, one of the defendants 1st party, was examined and after his evidence had been recorded, the survey papers on which the plaintiffs mainly rely were put in. Mr. Manners in consequence had no opportunity of explaining the entries which have been used against him, and the Subordinate Judge has come to conclusions as to the meaning and effect of these entries which, it is suggested, he would not have arrived at if Mr. Manners had been given an opportunity of giving his explanation with regard to them.
10. Mr. Manners in his evidence has stated, that the lands in suit are not zerait lands of the malik, but that they are lands which he obtained from the tenants under what he describes as the Tinkatia system. He has stated further that, after he had obtained the lands, and had cultivated indigo in them, it became known that the lease to him would not be renewed by the landlords, and that the tenants from whom the lands had been taken being afraid of losing their lands when the landlords resumed possession of the villages, asked him to enter into Kurtowli leases or sub-leases of the lands with them, that the leases were duly executed, and that under them he and his co-defendants became sub-tenants of the different raiyats who were the original holders of the lands which had been taken for indigo cultivation. He set up, therefore, in his evidence two distinct allegations. First, that he and his co-sharers defendants 1st party, had taken the lands from the tenants under the terms of his lease for the purpose of cultivating indigo on them, and to that extent their lease from the landlords was for agricultural purposes, and under it they became tenants of the landlords and, secondly, that they by taking sub-leases from the tenants afterwards had become in respect of those lands under-tenants of the raiyats. In either capacity they could not be ejected by the plaintiffs without the service of a proper notice in accordance with the provisions of law.
11. It is true that in their evidence some of the tenants from whom Mr. Manners says he took these Kurtowli leases, of whom some are included among the present plaintiffs and have evidently gone over to the side of the landlords, have stated that none of the lands suit are covered by any of the Kurtowli leases. Mr. Manners has distinctly asserted the contrary in his evidence and gone so far as to say that he holds no lands in the three Kitas or properties beyond the lands which are in dispute in the present suit.
12. There is, besides, the holding consisting of 6 bighas odd of land which originally belonged to Tengar Mahton, the father of plaintiff No. 17, Ramrup Mahton. Mr. Manners has stated that he purchased it from Tengar Mahton and that since his purchase he has been holding 4 bighas as a raiyat having purchased the occupancy-rights of Tengar Mahton therein and that he has sublet the remaining 2 bighas odd to Ramrup Mahton who is now in possession of them. As to the sub-lease to Ramrup there was no dispute at the trial and the issue framed with regard to these 2 bighas was struck out.
13. But in respect of the 4 bighas odd, out of the 6 bighas which are in possession of defendants 1st party, the plaintiffs claimed to be entitled to eject them. It seems that there has been litigation between the defendants 1st party, and the plaintiff No. 17, Ramrup, which was carried up to the High Court with regard to the rent due from him to the defendants 1st party, and that in the course of that litigation the right acquired by the defendants 1st party by their purchase from Tengar Mahton has been incidentally Considered and decided. The learned Counsel for defendants 1st party has referred to the judgment of this Court in appeal in that case Ramrup Mahto v. H. Manners 4 C.L.J. 209.
14. If the defendants 1st party are able to support their case either as regards the lands in suit which they say they held as agricultural tenants, or as sub-tenants under Kurtowli leases, or as regards the holding of 6 bighas odd which they say purchased from Tengar Mahton with his occupancy-right it is clear that they could have a good defence to the present action. The Subordinate Judge has, however, declined to go into these points, or to come to any findings with regard to them, because defendants 1st party made no mention of the Kurtowli leases in their written statement, and because they did not offer any evidence to prove what they had acquired by their purchase from Tengar Mahton. The learned Counsel for the appellants has, however, contended that both these points were distinctly raised in the evidence for the defence given by Mr. Manners, and that the Subordinate Judge erred in not coming to findings regarding them.
15. For the respondents the learned pleader has contended that the Subordinate Judge was right in throwing the onus on defendants 1st party, and in following the rule which has been laid down in this Court by a series of decisions, that when a landlord of his lessee has proved his title to a village and sues to eject a previous lessee from lands in the same, the onus rests on the latter to prove his title to remain on the land.
16. The present case differs materially from those ordinarily falling within the purview of the rule relied on. The plaintiffs are lessees of the landlords, and the suit is brought to eject the previous lessee from lands of which they have been in possession for a long series of years under their previous lease for the purpose of cultivating indigo thereon by their own servant. The suit has not been brought by the plaintiffs under their ordinary title as lessees of the landlords to eject the defendants 1st party, but on the special ground that the land are zerait lands and there can be little doubt that the meaning of the expression as used in the plaint is that the lands are the private or khudkasht lands of the maliks. The defendants 1st party in their defence alleged that the lands were not private lands of the landlords and claimed to be in possession of them as tenants, and as such not to be liable to ejectment. Under these conditions the plaintiffs certainly ought to have been called on to prove their title.
17. An alternative ground was put forward, namely, that under the terms of their lease, the defendants 1st party were bound to give up to the landlords on the expiry of the lease all the lands which they had then in their occupation for the cultivation of indigo. If the plaintiffs relied on that ground they certainly ought to have been called on to prove it, the case for defendants 1st party being an allegation that as tenants of the lands under the terms of their lease, they were protected from ejectment.
18. After the plaintiffs had substantiated either of these grounds it would then have been for the defendants 1st party to prove the circumstances on which they relied as a defence to the claim for ejectment.
19. The Subordinate Judge, however, made out a case for the plaintiffs which they certainly did not put forward in their plaint and on the basis of that case threw the onus on the defendants 1st patty.
20. We think that the defendants 1st party have a right to say that they have been prejudiced in their defence by the course which the Subordinate Judge has followed in the trial, and also by his refusal to consider and to come to distinct findings on the case set up by them, that the lands in suit are covered by the Kurtowli leases and that they had purchased the holding from Tengar Mahton with his occupancy-right therein. The reasons which the Subordinate Judge has given for not taking those points into consideration, are not, in our opinion, sufficient. We are, therefore, unable to support the judgment, and decree of the lower Court, and are of opinion that they should be set aside, and the case remanded for retrial. We are unable, to deal with the case on appeal as it stands, nor can we frame special issues which can be satisfactorily decided and returned to this Court, with finding thereon, as the findings on these points may affect the findings on the other points raised in the other issues. The onus should in the first place be placed on the plaintiffs to prove either that the lands are zerait or any other title on which they claim to be entitled to eject the defendants, and if such a title be made out the onus; will then be shifted on the defendants 1st party to prove their title in order to save themselves from ejectment. In considering the case, it will be necessary for the Subordinate Judge to come to distinct findings on the points which the defendants 1st party have raised, whether they are under the Kurtowli leases or by the purchase from Tengar Mahton, or by any other arrangement tenants on the lands in suit, and as such protected from ejectment in the present suit. The onus, of course, of proving that the Kurtowli leases cover the lands in suit, will be on the defendants 1st party, who rely on that fact to support their title.
21. We, therefore, set aside the judgment and decree of the Subordinate Judge, and remand the case to the lower Court for re-hearing. The parties will be allowed to adduce evidence, and findings must be arrived at on the points we have noticed as well as on the other issues raised between the parties and the suit then disposed of according to law. Costs will abide the result.