1. The suit out of which this appeal arises was brought by the plaintiffs to recover possession of certain lands, which had been leased to the defendants, by ejecting the defendants from the same.
2. The plaintiffs' case was that the lands were their zerait lands, that they had been leased to defendants under a series of leases, and that the term of the last lease having expired, the defendants had no right to remain in possession and that the plaintiffs were entitled to recover possession.
3. The defendants on the other hand denied the plaintiffs right to eject them from the lands alleging that they had acquired occupancy-rights in the lands by having been in possession for more than 12 years.
4. It appears that the lands were originally jungle lands and that the same share which the plaintiffs had in the village in which these lands are, was originally mortgaged to the defendants. During the period of the mortgage the defendants reclaimed the lands in suit and cultivated them for about 2 or 3 years before the end of the last mortgage lease. On the expiry of that lease the defendants appear to have remained in possession of the lands and afterwards the lands were leased out to them by the plaintiffs on a series of leases for terms of years. In these leases the lands are described as khudkasht lands.
5. The Court of first instance held that the lands were the khudkasht lands of the plaintiffs and that, therefore, the plaintiffs were entitled to recover possession from the defendants.
6. On appeal the District Judge reversed the judgment and decree of the Court of first instance holding that the defendants had acquired rights of occupancy in the lands.
7. The plaintiffs have appealed and the main point which has been argued in support of the appeal is that the District Judge is wrong in his conclusions that the defendants have acquired occupancy-rights in the lands.
8. It has been argued on behalf of the appellants that admittedly during the ticcadari period, that is to say, the period during which the defendants held possession of the lands as mortgagees, the defendants could not have acquired any occupancy-rights and that as under the leases subsequently granted and accepted by the defendants the lands were held by them as khudkasht lands of the landlords, they could not have acquired occupancy-rights during that period.
9. It has further been contended that the lower appellate Court has erred in placing the onus on the plaintiffs to prove that the lands are khudkasht lands.
10. It has been argued that even though under the law the onus may primarily have been on the plaintiffs, they had sufficiently discharged it when they had proved that under the leases the lands were described as khudkasht lands and were held by the defendants under the leases as such That thereafter the onus was shifted on to the defendants and it rested with then to prove that they had acquired occupancy-rights during the period of the leases.
11. In support of the case for the appellants reliance has been placed on the case of Batai Ahir y. Bhuggobutty Koer. 11 C.L.R. 476, and the case of Narsing Narain v. Dharam Thakur 9 C.W.N. 144. It is, to be observed that the case first relied upon is one which was decided before the passing of the Bengal Tenancy Act and that case as well as the other are distinguishable, from the present as in both of them it was alleged that the defendants had come on to the lands as trespassers whereas in the present case it is admitted that the defendants were in possession of the lands as tenants.
12. On behalf of the respondents it has been contended that the decision arrived at by the District Judge is correct. That under the provisions of the Bengal Tenancy Act before the plaintiffs could be regarded as entitled to recover possession of the lands, it was necessary for them to prove that the lands were their zerait lands as described in Section 120 of the Bengal Tenancy Act; that the District Judge was right in holding that the plaintiffs have failed to prove that the lands were zerait. either by reason of their having been cultivated by the plaintiffs or their servants for 12 continuous years before the passing of the Act or that they were zerait lands under any local custom or that they had been specifically let as zerait lands before the 2nd March 1883, and in support of this contention the case of Nil Moni Chakrabutty v. Bykant Nath Bera 17 C. 476 has been relied upon. In that case it was distinctly held that it rested on the landlords to prove that the lands were their zerait lands and that if in support of the contention they relied on any leases it was necessary to prove that those leases had been executed before the 2nd March 1883, as the principle of the Bill was to prevent the zemindars from putting any obstacles in the way of tenants' acquiring occupancy-rights.
13. It has further been contended that the recitals in the leases on which the plaintiffs rely to the effect that the lands were khudkasht lands could have no evidentiary value and in support of this contention reliance has been placed on the case of Sher Bahadur Sahu v. M.H. Mackenzie 7 C.W.N. 400. The case of Masudan Singh v. Goodar Nath Pandey 1 C.L.J. 456 is also relied upon to support the contention that the acquisition of occupancy rights by a tenant in lands alleged to be zerait cannot be prevented unless the landlord can prove that when the holding was first created it was held under a lease for a term of years or from year to year and that if the land was not so initially let out, the execution of the qabuliyat for a term of years by a tenant during the continuance of the tenancy was not to affect his status or to bar the application of the provisions of Chapters 5 and 6 of Act VIII of 1885. In our opinion the contention advanced on behalf of the respondents must prevail and we see no reason to differ from the conclusion at which the District Judge has arrived. The only real ground on which the plaintiffs have based their claim that the lands are khudkasht lands is that they are so described in leases. That description in itself would certainly not be sufficient to prevent the tenants from acquiring rights of occupancy in the lands especially as it appears from the evidence in the case that the defendants were in possession of the lands before the execution of the leases. The only ground on which the plaintiffs could support the contention that the defendants were bound by the terms of the leases would be on the ground of estoppel but that is expressly negatived by the provisions of Section 178 of the Bengal Tenancy Act. In this case it certainly rested on the plaintiffs to prove that the lands were zerait lands so as to bring them within the provisions of Section 116 of the Bengal Tenancy Act. There was absolutely no evidence to prove that they had been cultivated by the proprietors themselves or by their servants for 12 continuous years immediately before the passing of the Act and the leases on which the plaintiffs relied were admittedly executed after the 2nd March 1883. The question for decision was really one of fact to be determined on the evidence, namely, whether the Courts were satisfied that under the leases granted to the defendants they had been prevented from acquiring occupancy-rights in the lands. The conclusions, at which the District Judge has arrived on these points are, in our opinion, correct and we, therefore, dismiss the appeal with costs.
14. This judgment governs appeals Nos. 503 to 506, which are also dismissed with costs.