1. The facts which led to this litigation are these : The Defendant No. 1 is the putnidar. On the 24th May 1884 one Kalu Majhi executed in favour of the Defendant No. 1 a kabuliat by which a Sarasari Jama was sought to be created in respect of 275 bighas of land. Out of these 275 bighas 160 bighas were cultivated land for which a rental of Rs. 74 was fixed. The remaining 115 bighas were waste land for which no rent was assessed and it was provided in the document that the rent would be assessed therefor when the land would be brought under cultivation. On the 1st December 1888 Kalu sold this tenancy in respect of the 160 bighas to one Bishu Majhi and one Kanai Dhangor. Bishu and Kanai were recognized by the Defendant No. 1 as transferees in respect of the said 160 bighas and they thereafter sold to the plaintiff's father Giridhari the said tenancy by a conveyance dated the 4th May 1894. On the 16th February 1895 Giridhari got a conveyance from Kalu in respect of the remaining 115 bighas. Giridhari however was not recognized by the Defendant No. 1 who went on instituting suits for rent against the heirs of Bishu and Kanai, and Giridhari appears to have satisfied the decrees so obtained by depositing the decretal amounts in Court. On the 20th September 1910 the Defendant No. 1 obtained a decree for arrears of rent against the heirs of Bishu and Kanai for certain period and in execution of that decree he purchased the tenancy interest on the 20th January 1911 and took possession of the tenancy on the 28th January 1911. The plaintiffs who are two out of the three sons of Giridhari applied for setting aside the sale also made an application resisting the delivery of possession to the decree-holder Defendant No. 1. Those proceedings ended in favour of the Defendant No. 1 on the 5th January 1914. In the meantime that is to say in July 1911, the name of the Defendant No. 1 was recorded in the settlement proceeding as holder of this tenancy interest. The plaintiffs thereafter instituted the present suit out, of which this appeal arises for declaration of their title to and for recovery of possession of 2/3rds share of the suit land. The third son of Giridhari was impleaded in the suit as Defendant No. 10. The Defendants 2 and 3 are the sons of Bishu, Defendant No. 4 the son of Kanai and Defendants 5 to 10 are the purchasers of the interest of the said Defendant No. 10. The suit has been decreed by the Courts below though upon different grounds. The learned Munsiff held that the tenancy created by the document of the 24th May 1884 was a permanent tenure which was transferable and that therefore the decree obtained by Defendant No. 1 against the sons of Bishu and Kanai and the sale held in pursuance of that decree were not binding on the plaintiffs. On appeal the learned District Judge held that the tenure was not a permanent one but it was transferable and accordingly the plaintiffs were not bound by the decree and the sale to which I have referred.. The Defendant No. 1 has thereupon preferred this appeal.
2. Three grounds have been urged on behalf of the Defendant No. 1 in this appeal. The first ground is to the effect that upon a proper construction of the kabuliat of the 24th May 1884 it should have been held that the interest created thereby was not a tenure but a raiyati holding. The kabuliat in question has been placed before us and the terms of the document have been brought to our notice and it has been urged that having regard to certain provisions in the document to which I shall presently refer it was the intention of the parties that an occupancy raiyati holding and not a tenure was to be created thereby. The document recited that it was a sarasari kabuliat, and Kalu the executant of the document is described therein as being a person whose occupation was cultivation. The document further. provided that if any patit land in addition to the land which had already been brought under cultivation was cultivated, rent would have to be paid therefor separately. It went on to state that if any market, hat &c.;, were established on the land the landlord would be entitled to make settlements about them separately, and if any portion of the land was acquired for public purpose the landlord would get the price therefor. It further provided that the tenant would enjoy the fruits of the trees on the land paying falkar and would be liable to pay further compensation if he did damage to the trees &o.; It further stated that if the entire rent for any particular years was not paid by the end of the year and at the time of the Chaitra kist the landlord would be entitled to make a fresh settlement of the jama. It stated also that the tenancy that was created was to be heritable. No period was fixed for the lease and the amount of rent fixed was as I have stated Rs. 74 for 160 bighas and it was stipulated that when fresh land would be cultivated assessment of rent would be made in respect of the same. Some of the clauses contained in this document no doubt are clauses which would be more consistent with the creation of a raiyati interest than with the creation of a tenure; for instance the clause relating to the payment of falkar, the clause relating to the compensation for lands to be acquired for public purposes and so on. But it is not unusual to find such clauses even in documents which are expressly executed for the purpose of creating the interest of a tenure-holder. The document purported to create a tenancy in respect of 275 bighas of land. That itself raises a presumption that the interest created was that of a tenure-holder and that presumption continues until it is rebutted by evidence to the contrary.
3. The learned District Judge has referred to certain other facts and circumstances in his judgment and upon which he has relied for coming to the conclusion that the interest created was that of a tenure-bolder and not of a raiyat. These facts are that Kalu himself held a few bhighas out of 275 bighas of land and the rest was in the possession of other tenants. He has referred to a number of documents from which he has inferred that Kalu had tenants under him with regard to a portion of this land. He has referred to certain rent decrees obtained by Kalu against his under-tenants. He has referred also to the fact that Bishu and Kanai used to live at a distance of 14 or 16 miles from the place where the lands are situate and that therefore they could not have themselves cultivated the land. The document apart from the attending circumstances may perhaps be equally consistent with the theory that an occupancy holding was being created unless reliance was placed upon the presumption which arises by reason of the area being 275 bighas. But these, circumstances to which the learned Judge has referred may legitimately be referred to for the purpose of arriving at a definite conclusion, and I am of opinion that the learned Judge upon a consideration of all these facts and circumstances was right in holding that the interest created was that of a tenure-holder and not that of a raiyat. The appellant contends in the first place that the fact that notwithstanding the transfer, suits for realization of rent were being instituted against the original tenants Bishu and Kanai who had been recognized by him, and the fact that in the record the name of the appellant was entered as the holder of these lands should be taken into consideration, and from these facts it should be held that the presumption which arises under Section 5 of the Bengal Tenancy Act has been rebutted. It should be remembered however that according to the plaintiff's case the entry was made without any notice to them and the fact that the transfer was not recognized by the defendant cannot be taken to be a fact in his favour in the present suit.
4. The second contention urged on behalf of the appellant is that if the tenure was not a permanent one then the onus is on the plaintiffs to prove that it was transferable. In support of this contention reference has been made in the first place to the provisions of Section 11 of the Bengal Tenancy Act, which states that every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property. The appellant's argument is that because there is no provision in the Bengal Tenancy Act to the effect that a non-permanent tenure would be transferable, whereas there is a clear provision that a permanent tenure is transferable it should be held that the person who alleges that a non-permanent tenure is transferable must prove it; and in support of this contention reliance has also been placed upon a passage to be found in the judgment of this Court in the case of Hiramoti Dassya v. Annoda Prosad Ghosh  7 C.L.J. 553. The passage runs thus:
It is noticeable that Section 11 of the Bengal Tenancy Act enacts of that every permanent tenures shall, subject to the provisions of the Act, be capable of being transferred. Nothing however is said about non-permanent tenures. If it had been also intended to make them transferable was might have expected the Legislature to have said so
5. The case in 7 C.L.J. 553 was a case in which the question arose as to the transferability or otherwise of a non-permanent tenure which had been created before the passing of the Transfer of Property Act. The learned Judges first of all held that the tenancy having bean created before the Transfer of Property Act came into operation the said Act was not applicable to the case, and thereafter they made the observations to which I have referred. Those observations are in the nature of an obiter dictum, and with great respect to the learned Judges who made them I am of opinion that even if they are correct they cannot be said to apply to a case like the present where admittedly upon the pleadings pf the parties the tenancy was created after the passing of the Transfer of Property Act and before the Bengal Tenancy Act came into operation. In the present case it should be remembered that the tenancy was created by a kabiliyat of the 24th May 1884.
6. An attempt was made here on behalf of the appellant to show that the tenancy existed from before 1882. But that was not the position that was taken by him in any of the Courts below, and I am of opinion that he should not be allowed to take up that position at so late a stage of the case. If the tenancy was created after the Transfer of Property Act came into operation and before the Bengal Tenancy Act came into existence then under Section 6 of the Transfer of Property Act the tenancy would be transferable if in point of fact there is no provision either in that Act or in any other Ac restricting the transfer thereof. Section 117 of the Transfer of Property Act provide only that the operation of the chapter in which that section occurs does not extern to leases for agricultural purposes. Section 6 of the Transfer of Property Act lay down that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force, and Clause (i) of that section says that
nothing in this section shall be deemed to authorize a tenant having untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue or the lessee of an estate under the management of a Court of Wards to assign his interest as such tenant, farmer or lessee.
7. It is clear from this that unless there is some special provision in the Bengal Tenancy Act or in some other Act which prohibits the transfer of a non-permanent tenure the general provisions contained in Section 6 as to the transferability of tenures will hold good. In the present case I am of opinion that it having been found that the interest created by the document of 1884 was a non-permanent tenure, the said tenancy is a transferable one.
8. The next argument of the appellant is to the effect that as the plaintiffs had allowed themselves to be represented in the Sharista of Defendant No. 1 through Bishu and Kanai it was not open to them to allege that they are not bound by the decree and the sale to which I have referred. Reliance has been placed in support of this argument upon the principle contained in Section 41 of the Transfer of Property Act. That principle however relates to a case where one stands by and acquiesces in something that is being done by another, and if in consequence of such acquiescence some injury is caused to soma third party, it is provided by that section that it is not open to the person so acquiescing to say that what was done by that other parson was not authorized by him. Reference has been made to certain decisions of this Court as supporting this contention of the appellant. The case which is most relied upon for the purposes of this contention is that of Ali Mahamud v. Aftabuddin Bhuya  20 C.W.N. 355. It will be seen that in that case there was a finding by the Subordinate Judge to the effect that a certain tenant and his heir had 'allowed' another person to represent them as tenants in the sherista of the landlord.
9. In the present case it cannot be said for a moment that the plaintiff or Giridhari, the transferee, ever allowed their vendors to represent them in the sherista of the landlord. Suits for rent were being instituted against the said vendors in spite of the fact of the said transfer and decretal amounts were being deposited by the transferee when the decrees were obtained. There is no question of acquiescence or of allowing somebody else to represent the transferee in the sherista of the landlord in the present case. As has been observed in a decision of this Court in the case of Chamatkari Dasi v. Triguna Nath Sardar  17 C.W.N. 833 the question whether there has been such representation or not is a question of fact, and the mere fact that the transferee refrained from instituting a suit for a declaration to get his name recorded in the defendants sherista, which seems to be the only course left to the transferee to adopt in the circumstances of this case, cannot be taken as an acquiescence on his part or allowing of the transferrers to represent him in the landlord's sherista. I am therefore of opinion that the principle to which reference has been made in connexion with this contention has no application to the facts of this case.
10. These are all the contentions that have been urged on behalf of the appellant. As they fail the appeal must be dismissed with costs.
11. I agree.