1. In this case, the plaintiff, as the settlement holder from Government, sued to eject the defendant from certain lands held by him as tenant. The plaintiff's allegation was that the defendant was but a chookanee tenant, liable to be ejected at his pleasure ; while the case for the defendant was that the land was held by his family from generation to generation as pyker lands, and that he had a permanent right of occupancy and was not. liable to be ejected.
2. It was not proved that the defendant was a tenant of the description alleged by the plaintiff; and in fact the lower appellate Court holds this to be the case.
3. The facts that have been found in the case by Mr. L. Johnson, the Judge of the Assam Valley Districts, are (1) that the defendant is a descendant from one of the pykes who held lands under the Assam Rajahs; (2) that the Assam Rajahs granted the pyke to a certain lakherajdar; (3) that the pyke held the land in suit as before under the lakherajdar; (4) that the lakheraj was subsequently resumed by Government; (5) that the defendant has his house and gardens upon the land for a long time and has paid for many years at 'Government revenue rates.' The Judge is further of opinion that, although upon resumption of the lakheraj, the defendant lost all the rights he may have had under the lakherajdar, he did not lose the rights he held under the Assam Rajahs.
4. The Judge then says that Act X of 1859 does not apply to Assam, and therefore the right of occupancy as conferred upon ryots by Section 9 of the Act cannot be claimed; and he holds that there is no statute law of landlord and tenant in Assam; still having regard to the laws in force in other parts of India, and regard being also had to the facts of the case, the defendant is not liable to be summarily ejected.
5. We do not agree with the Judge in thinking that the case should be determined by the laws in force in other parts of India; and it appears to us that he should have confined himself to such laws as might be found to obtain in Assam.
6. It is not necessary in this case to discuss whether Act X of 1859, or the occupancy sections of that Act, are applicable to Assam; for we think that the case may well be decided upon the facts as found by the Judge and upon the common law of the country.
7. What may be the common law of the country is to be found in the 'Selections from the records of the Bengal Government' No. XI, published by authority in 1853. And it appears from the report of Major Jenkins, Commissioner of Revenue, Assam, dated the 13th November 1849, that under the ancient Government of the country, the pyke system prevailed in Assam; that the pykes had lands assigned to them in lieu of service; that latterly, they had 'generally to serve for one-third of the year, or such as were not field-labourers, had to give so much cloth or gold or other article which they were employed to produce; 'that besides the lands granted in lieu of service, the pykes 'were allowed to hold the village barri lands, without limitationas to extent and free from all direct imposts;' and that these lands descended from father to son, divisible amongst the children according to the custom of the country;' that they could give the lands away by 'gift, or will, or by mortgage, but all the pykes throughout the country paid a capitation tax in lieu of, or as equivalent to a rent for these lands;' that when personal service was not required from a pyke, he paid certain rent; that in consequence of the exemption of slaves from taxation, and 'the plague of poll-tax' and personal service, many pykes were content to call themselves slaves, and concealed themselves amongst the families of slaves who could protect them; and this resulted in extensive oancelment of pykes; and that Mr. Scott who held the office of Commissioner under the English Government instituted enquiry, and the result was that a very large number of persons were restored to the rank of pykes. The report further states 'that the ryots are now considered to have full proprietary rights in all their lands of all descriptions, and the pykes are no longer liable to arbitrary interference of any Revenue Officer, and no ryot could be dispossessed of any portion of his land except by the regular process of the Civil Court. They can, of course, sell any portion of their lands, for, though the Government withheld from yielding to them a proprietary right in the pyke land, yet the ryot can dispose of his right of occupancy; the Government have foregone their right to interfere, and no other authority has any power.'
8. Major Jenkins then says that he considers that 'the estates in Assam, of all descriptions and sizes, are more or less freehold, and held subject to the only one condition of paying the Government tax on the land, and all the occupants are with little exception free-holders.' Referring to the tenants of lakherajdars, he says that they are, 'to all intents, free-holders also, for they were transferred by the Government of the country with their lands, and all that the Government surrendered was the right to the services of the pykes. The lands they occupy are as much their own as if they were held under Government, and they are not restrained from throwing up these lands and leaving the lakherajdars whenever they choose, but the abandoned lands would belong to the lakherajdars, or, if sold to other ryots, these would have to pay rent to the lakherajdars.'
9. We think that we may well accept the above report: of Major Jenkins as giving what the customary law of the country was under the old Government; and what has been understood since the English conquest to be the law and the rights and privileges of the pykes.
10. The plaintiff in the present case, as above mentioned, is but a settlement-holder from Government. The written lease, as we understand it, does not confer upon him any permanent right; and yet he seeks to eject arbitrarily a person who has as declared by the Chief Revenue Officer of the district in 1849, a substantial interest in the land he occupies.
11. It is found by the Judge that the defendant is a descendant of an old pyke who held the lands under the Assam Rajahs; that the pyke was granted by the Rajah to a lakherajdar, but that neither this circumstance nor the subsequent resumption by Government of the lakheraj interfered with or disturbed his right; that he held on as before as pyke; and that since the resumption he has been paying a certain rent.
12. Applying the common law of the country as described above, to the facts found, we are of opinion that the defendant is not liable to be turned out at the will and pleasure of the plaintiff, and that this suit should therefore fail.
13. The appeal will be dismissed without costs, no one appearing for the respondent.