Carnduff and Richardson, JJ.
1. These three appeals arise put of three suits which were, by consent of parties, heard together and disposed of by the same judgment. The undisputed facts may be thus shortly stated.
2. The appellant is the proprietor of Killah Ambo in the district of Balasore in Orissa. In this killah the right of primogeniture prevails, the estate being impartible and descending on the death of the proprietor to his nearest male heir. The respondents are the agnates of the proprietor, who is the appellant before us, and whose ancestors assigned the lands in suit, subject to a 'light tribute' equivalent to the Government revenue, to the ancestors of the respondents in lieu of maintenance. The respondents in Section A. Nos. 1181 and 1182 base their title on two ancient sanads of the year 1812, while the respondent in the remaining appeal bases his title on a rafanama filed in 1886 in a Civil Appeal between his father and the present appellant's grandfather.
3. Orissa, it is well known, has not been permanently settled. At the last settlement in 1897 the Settlement Officer treated the 'light tribute' as rent, and increased it considerably. Thereafter the appellant sued the respondents for arrears of rent as tenants on the basis of the new settlement, and he obtained exparte decrees against them in the years 1903 and 1904. The respondents then instituted these suits in the Court of the Subordinate Judge for declarations that the rent decrees had been fraudulently obtained and ought to be set aside, and that they were liable to pay, presumably as proprietors, only a proportion of the Government revenue. They also prayed for an injunction restraining the appellant from executing his fraudulent decrees; but it appears that, after the institution of the suits, the decrees were in fact executed, and this prayer, therefore, became in fructuous and was ignored. The Subordinate Judge has found that the 'light tribute' payable by the respondents is not rent, that the relationship of landlord and tenant has never existed between the appellant and the respondents, and that, therefore, the Settlement Officer was incompetent to assess any rent on the lands in suit. He has accordingly given the respondents a declaration to the effect that they are entitled to hold the lands granted to their ancestors by a former proprietor of the killah in lieu of maintenance on payment to the appellant of a proportionate share of the Government revenue These decrees have been affirmed by the learned District Judge, and the proprietor has now appealed to this Court.
4. It is clear that, if the assessment of rent by the Settlement Officer in 1897 was made under Section 104 of the Bengal Tenancy Act, 1885, his decision cannot now be questioned. This is laid down in express terms by Section 107 of the Act, read with Section 9 of the Bengal Tenancy (Amendment) Act, 1898 (Ben. Act III of 1898), which runs as follows:
Every settlement of rent by a Revenue Officer under Section 104 of the Bengal Tenancy Act, 1885, before the commencement of this Act, in respect of which no appeal has been preferred to the Special Judge appointed under Section 108 of that Act, has the force and effect of the decree of the Civil Court in a suit between the parties, and shall be final.
5. Now, it is admitted, and it cannot be denied, that, if the respondents are tenants, no exception can be taken to the proceedings of the Settlement Officer. The question therefore resolves itself into one as to whether the respondents are tenants or not. Both the Courts below have held that they are not, and it has first been contended before us oh behalf of the respondents that this is a finding of fact which cannot be reversed on second appeal. We think that there is no substance in the contention. The learned Subordinate Judge has found, first, that the lands in suit were granted to the ancestors of the respondents in lieu of maintenance and on the condition that the grantees would pay to the grantors a share of the Government revenue; secondly, that, as the grantees were bound to pay only a share of the Government revenue, they were never liable to pay 'rent' to the proprietors; and, thirdly, that, therefore, neither the respondents nor their ancestors have ever held the lands as>v tenants under the proprietors, and the relationship of landlord and tenant has at no time existed between the two. Here, no doubt, we have certain findings of fact, and with these we cannot, of course, interfere; but the inference drawn from them is an inference of law, which is, in our opinion, open to revision by us. The findings amount to this, that the respondents hold these lands on payment to the appellant of sums of money proportionate to the Government revenue, and it seems to us that the true conclusion from this is that the respondents are tenants of the appellant.
6. The position of these holders of. maintenance-grants in Orissa is described by Mr. Maddox at page 414 of his Orissa Settlement Report of 1900, where he discusses' the incidence of tenure in killahjat estates. 'In the first place,' he writes, 'the inheritance to the ownership is governed by the law of primogeniture, and from this arises the necessity of providing for the younger brothers of the family. This is done by assigning to the brothers and other near relatives villages or parts of the villages for their support, under such names baradaran jagir, khoraposak niskar, etc. These grants are generally heritable, but not transferable, and the head of the family claims the right to resume on the failure of direct heirs, and adoption is not recognised.'
7. The question we have to decide is whether a person holding such a grant on condition of paying to the grantor a proportionate share of the Government revenue, is a tenant of the grantor within the meaning of the Bengal Tenancy Act of 1885. Section 3(3) of that enactment defines a tenant as 'a person who holds land under another person, and is, or, but for a special contract, would be, liable to pay rent for that land to that person' and Sub-section (5) of the same section defines 'rent' as 'whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant.' Now, when we refer to the plaint in S.A. No. 1068 of 1907, we find it is there distinctly states hat the jagir in suit was held, for maintenance on condition of the payment of an annual rent (jama) of so many rupees in proportion to the revenue (rajashya) of the killah. Again, when, we look at the refanama, which is relied upon in that appeal, we find it similarly stated that the maintenance jagir was to be held year by year on payment of a certain sum as the rent (jama) thereof to (not through) the proprietor, and that the revenue (rajashya) assessed on the land should be paid by the latter. And, as we have already shown, the Courts below have found that the respondents are liable to make, in respect of these lands, annual cash payments to the appellants. The result is that, on the respondent's own showing, as well as on the facts found, the lands are held in lieu of maintenance oil payment of sums corresponding with a share of the Government revenue, and it seems to us that the sums so paid or payable are 'rent.' In this connection we may refer to the ruling of this Court in Chunder Kant Chuckerbutty v. Mahomed Hussein (1866) 6 W.R. Act X, 1. This was a suit for the rent (or revenue) of land, which was held by the defendant as a proprietary taluk subordinate to the plaintiff. The defendant undertook to pay the revenue to the plaintiff, who was bound to pay the same to the Government, the money receivable from the defendant being part of the assets of the estate, and the whole estate being liable for default of revenue. It was held by the Judges that the rent (or revenue) assessed on the taluk might be the subject of a suit under the Bengal Rent Act, 1859. Adopting the ratio desidendi of that case, we hold that the respondents are clearly not co-proprietors, but tenants, that the existence of the relationship of landlord and tenant follows from the facts found, and that these appeals are entitled to succeed.
8. We may add that the frame of the suits seems to us to be obviously bad. The foundation of them was fraud in obtaining the rent decrees of 1903 and 1904, and the cause of action was, in each instance, said to have occurred on the day on which the fraudulent decree was obtained. No particulars of the fraud suggested were, however, set forth in the plaints, while at the trial no attempt was made to substantiate fraud, but the entirely new case that the Settlement Officer's proceedings were ultra vires was made. It seems to us that, in these circumstances, it is very doubtful whether a declaratory decree ought to have been granted by any Court in the exercise of its equitable jurisdiction.
9. The result is that these appeals must be decreed, and the suits dismissed with costs throughout.