1. This appeal has arisen from a suit which was instituted for recovery of khas possession. The plaintiffs were the holders of a jote in the Western Duars, under which there was chukani tenancy held by one Chakli Bewa, under whom the defendants allege they were darchukanidars. The chukani was sold for arrears of rent and was purchased by the plaintiffs who served a notice on the defendant under Section 167, Ben. Ten. Act for annulling the encumbrance and thereafter commenced this action. The defence was that the defendants had occupancy rights in the lands and so were protected from eviction.
2. The suit has been decreed by both the Courts below. One of the defendants has appealed.
3. The appellant's contention, to put it quite shortly, is that the Courts below have misconceived the terms of the notification by which the Bengal Tenancy Act was extended to the Western Duars, and, upon an erroneous view thereof, have not tried to find out the incidents of the defendant's darchukani tenancy and have thus omitted to decide the real points that arise in the case.
4. One of the questions that were raised in the trial Court in defence to the suit was whether by reason of an order of the Deputy Commissioner, dated 23rd October 1922, the status of the defendants was raised to that of chukanidars. It was pleaded that by reason of the purchase of the chukani by the plaintiffs, the defendants had acquired this higher status. The contention is clearly unsupportable and it was overruled by the trial Court and has not been pressed since then.
5. The main question in the case is whether the defendants who are darchukanidars have acquired a right of occupancy. The trial Court held that under the terms of the lease granted to the plaintiffs the latter were not entitled to create any tenancy in the lands excepting chukani tenancies, that the defendant's alleged tenancy was created not by the plaintiffs or their predecessors but by the chukanidars, the predecessors of Chakli Bewa, that the darchukani tenancy of the defendants was not created with the consent of the plaintiffs or their predecessors and that a darchukanidar in Western Duars had no right whatsoever in the lands. The Subordinate' Judge, on appeal, has endorsed more or less the same view. He has hell that the jotedar in Western Duars is in no way bound to recognize darchukanidars, and that according to the settlement proceedings which were approved by the Government and according to the forms approved for granting leases to chukanidars the latter are expressly debarred from letting out in darchukani lands granted to them, and so the darchukanidar could not acquire a right of occupancy.
6. The Bengal Tenancy Act (8 of 1885) was extended to the Western Duars with effect from 1st January 1899, by notification No. 964 T.R., dated 5th November 1898, subject to the restrictions and modifications specified in four clauses, of which Clause (iv) which only is relevant, ran in those words:
Where there is anything is the said Bengal Tenancy Act which iv inconsistent with any rights or obligations of a jotedar, chukanidar, darchukanidar or other tenant of agricultural land as defined in settlement proceedings, here before approved by 'Government or with the terms of a lease heretofore granted by Government to jotedar, chukanidar, darchukanidar, adhiar or other tenants of agricultural land, such rights, obligations or terms shall be enforceable notwithstanding anything contained in the said Act.
7. The clause is not very happily worded, but its meaning is plain enough. The darchukanidars in the Western Duars prior to the introduction of the Bengal Tenancy Act had no recognized status: the creation of darchukani tenancies has been expressly forbidden in the lease granted by Government to the jotedars as well as in the form approved by Government to be used for granting leases to chukanidars, and their tenancies were altogether ignored in the settlement proceedings that were had at the instance of the Government. Prior to the introduction of the Bengal Tenancy Act in the Western Duars, the rights of the tenants were regulated almost entirely by the contracts under which they held and there could be no question of any right of occupancy accruing under any statute. The forms of leases used ever since 1888 appear to have forbidden the creation of any sub-lease by a sub-tenant under the jotedar. A darchukani tenancy created by a chukanidar who had no right to create the same would not be recognized by law and would not be binding on the jotedar. There may, however, be conceiveable cases where the sub-lease in favour of a darchukanidar was a good and valid one, by reason of there having been no restriction in the powers of the chukanidar or jotedar as regards the creation of the darchukani tenancy, and to the case of such a darchukanidar the provisions of the Bengal Tenancy Act having applied from 1st January 1899, the rights and privileges 'of an occupancy raiyat may have accrued. In the case of such a darchukanidar, the question may arise whether, notwithstanding that he holds under a chukanidar, he is not a raiyat, rather than an under raiyat, and being a raiyat whether he has not acquired a right of occupancy just as any other raiyat to whom the Bengal Tenancy Act applies. On this question, the way in which the jote has been recorded in the settlement proceedings that took place prior to the Notification of 1898 would be relevant. If his tenancy has been ignored in the settlement proceedings he will have to account for the omission or prove a valid tenancy subsequent to the said proceedings. If it has been recorded in some shape or other he will obviously be in a better position.
8. The Courts below appear to have gone mainly, if not entirely, upon the rights of darchukanidars in general as recognized or rather in the settlement proceedings. In so far as they have done so, they appear to have misconceived the true meaning and effect of Clause (iv) of the Notification. For this, however, in all probability it was not the Courts, but the appellant himself, who was to blame, and it is exceedingly likely that the superior ingenuity of his legal advisers in this Court has given his defence a shape in which it was not presented before. As far as can be gathered from the materials on the record the appellant seems to have heretofore contented himself with casting his lot in common with all darchukanidars in Western Duars and did not attempt to make out a special case for himself. It is also true that the chances of the appellant being successful in establishing a special case for himself are rather slender. But it is not possible to say that the case that is now put forward is one that is inconsistent with the averments in the written statement or one that may not be allowed to be established upon those averments.
9. We are accordingly of opinion that the appellant should have a chance of establishing that he is a tenant whose tenancy is fit to be recognized in law and that as such tenant he has acquired a right of occupancy which protects him from eviction. For this purpose the origin and incidents of the appellant's alleged tenancy will have to be enquired into. The onus of proving the necessary facts will be on the appellant. Both parties will be allowed to adduce such further evidence or place before the Court such further materials as they may desire to do on this question.
10. As it will be convenient to have the matter decided by the lower appellate Court having regard to the nature of the further evidence or materials, if any, that are likely to be forthcoming, We merely set aside the decision of that Court and send down the case to it for being dealt with as above. Costs of this appeal will follow the event of the decision by the lower appellate Court.