1. The only question in this appeal is whether the appellants had such rights in certain lands which have been acquired tinder the provisions of the Land Acquisition Act as would entitle them to a part of the compensation money. The lands were acquired under a declaration dated 31st January 1927 and the appellants were claimants Nos. 4 and 5 in the land acquisition proceedings, the former being the tenants in respect of two land acquisition plots 8 and 9, plot 8 being a piece of land and plot 9 a doba. Claimant No. 5 was the tenant in respect of two other land acquisition plots 13 and 14, the former being a piece of land and the latter a tank. The Collector had divided the compensation money equally between the two claimants on the one side and their landlords, the Lakhrajdars, on the other. On a reference which arose out of an application made by the landlord and also out of an application which the appellants made, the learned Judge has awarded the whole of the compensation money to the Lakhrajdars. From this decision the appellants have preferred this appeal.
2. It appears that the survey and settlement operations were going on in the locality about the time when the declaration was made and we are told that the actual survey had been made in or about the year 1925-1926. The Record of Rights that was prepared in connexion with these operations, we are told, was Finally published sometime after the declaration. In the Record of Rights, the claimants were entered as 'rayats sthithiban' that is, settled-rayats; and one of the raiyats was described as having a korfa tenant under him. Against the name of the said korfa tenant, there was an entry that according to custom he had occupancy right. The land which this korfa tenant was occupying was described as sali land. The judgment of the learned Judge is not very happy and exception may justly be taken to certain remarks which are to be found in his judgment which create an impression that he was labouring under the idea that the claim which the appellant put forward was not a bona fide claim but that the object of their asserting that they had some rights in the land was simply to improve their status, they being by occupation dhobis, an occupation which they were not inclined to own or accept. The learned Judge says:
The fact is that taking advantage of the settlement proceedings they are ambitious to become agriculturists.
3. This sort of remark does not appear to us to be just or proper. But the decision that he has arrived at on the question of the rights of the appellants to the land, in our opinion, is a decision which is justified upon the materials that are on the record. The learned Judge is right in saying that there is no evidence showing that as a matter of fact the appellants were on the land before they executed the two kabuliyats by which they purported to obtain for themselves tenancies in respect of the land acquired. These kabuliyats were executed in 1916 and 1918 respectively. The terms of the two kabuliyats are the same and if the character of the tenancy of the appellants has to be determined, the terms of the kabuliyats have got to be primarily looked into. The kabuliyat states that a certain annual rent was fixed in a lump and that rent was to be paid in four equal kists, and the tenant on agreeing to such rent was taking settlement of land as he was prepared to live on the land as a tenant was accepted by the lessor. Then it says:
Without your permission I shall not be competent to cut down any trees that are or will grow on the land. You may out down any trees for your requirements.
4. These two sentences clearly indicate that no right to the trees was to be enjoyed by the lessee. Then there is a clause which, in our opinion, is of considerable importance. It runs in these words: 'Nor shall I acquire any right to transfer by way of gift or sale or any other legal right.' The plain words of this clause would suggest that the lessee was not to have any right under their respective leases to transfer by gift or sale or any kind of right whatsoever. But Mr. Bose appearing on behalf of the appellants has argued that the expression 'or any other legal right' is to be understood as meaning any other right which a tenant might occupy by remaining in the land for sometime, that is to say, some future right which a tenant coming under a lease of this description might acquire by occupation of the land for sometime. His object in putting this interpretation is to make out that the lessees might acquire a right of occupancy. Unless the words of the clause are unduly strained it is not possible to attribute to it the meaning which Mr. Bose wants to attribute to it. There is no clause, it should be noted, suggesting that so long as the tenant goes on paying the rent that is fixed by the lease, he would be allowed to remain in occupation of the land; and in that respect the kabuliyat seems to contain terms which are almost entirely one-sided. Certain cases have been cited before us by Mr. Bose in order to induce us to hold that there being no words expressly limiting the term for which the lessee would be entitled to remain in occupation of the land, it should be held that the lease would enure during the lifetime of the lessee. In one of these cases, namely the case of Ashutosh Lahiri v. Chandi Charan Mitra, 1927 Cal I79, the head-note says:
Where a lease was to the effect that the land was settled with the lessee at an annual rent and the lessee was to enjoy and possess the same by constructing a homestead and residing therein, regularly paying the rent,
there was no term of inheritance in the lease, the interest created by the lease which was neither for a definite term nor one expressly for perpetuity, was not that of a tenant-at-will or of a yearly tenant, and it would be right to apply to it the general rule of construction which is to the effect that if a grant was made to a man for an indefinite period it enures generally speaking at least for the life-time of the grantee unless there were some words showing the Intention that a heritable grant was made.
5. The lease in the present case is, it is true, a lease without any term fixed. But the clause to which we have referred and which provides that the lessee shall acquire no other legal right by which we understand that he shall not acquire any other legal right under the lease, is a clause which, in our opinion, makes a good deal of difference. In any case the decision quoted above turns on its own facts and the head-note is one which is certainly mis-leading. In that case, after referring to the fact that there was no term of inheritance in the lease and that the lease was one, neither for a definite term, nor one expressly for perpetuity, what was said in the judgment was that in those circumstances the terms of the document themselves not being very clear it was competent to look into the surrounding circumstances. And a number of surrounding circumstances were referred to as facts which had been found by the Court below for which there is nothing corresponding in the present case. It was found in that case that the lessee was to build his dwelling house on the land. There is no such provision in the present lease. Of course it cannot be said that it was intended that no house was to be erected although the lease was granted for residential purposes. But there were other facts. In that case another finding was that at the time the lease was granted a substantial sum was paid by the lessee to the lessor as nazarana. Then there was the fact that the lessee erected with the permission of the lessor some substantial structure upon the land and there were two transfers of the lessee's interest and so on. None of these facts appears in the present case and upon the plain words of the kabuliyat to which we have referred it seems to us that nothing more than a tenancy at will was intended to be created by the document. Another case to which our attention has been drawn is Jogesh Chandra Roy v. Makbul Ali, 1921 Cal 474. In that case, the grant was of an itmam, the word itself suggesting a tenancy which can never be of a precarious nature and with regard to a grant of that description it was said:
If a grant be made to a man for an indefinite period, it enures, generally speaking, for his life-time and passes no interest to his heirs, unless there are some words showing an intention to grant an hereditary interest.
6. If the other terms of the kabuliyat in the present case indicated that a permanent tenancy was intended to be created then the fact that no definite term was mentioned in the document would perhaps have entitled us to presume that the intention of the parties was to create a tenancy which would enure during the life-time of the lessee.
7. We are of opinion that the present kabuliyat does not create in favour of the lessee any interest which can be held to be anything more than a tenancy-at-will. So far as the record of rights is concerned, the learned Judge was inclined to think that because the lands were situated within the limits of Joynagore Municipality therefore the record of rights was of no value. With this conclusion of the learned Judge, we cannot agree because it may be that the tenancy, having regard to the use that has been made of it, can be regarded not merely as one for residential purposes but also for horticultural purposes. And if the latter be the fact, the record of rights in this particular case will have the same value as it would have in any other case. But the entries appear to us to be incorrect inasmuch as the evidence that has been adduced in this case clearly shows that what is stated in the entries is not what is the real state of facts. The under-tenancy is said to be a sali land in the record of rights. But the evidence which the defendants have adduced in this case and to which our attention has been drawn shows that the land had never been paddy land, at least not before it was settled with a person who is said to be an under-raiyat. The whole of the evidence is to the effect that the claimant, whose land it is, had grown vegetables, plantain, betel-nut, cocoanut and some other trees. There are no materials on which it can be held that the entry of the name of this claimant as settled raiyat in the record of rights was justified and such materials as there are before us amply prove the contrary. That being the position we do not see how it is possible for the appellants to contend that any rights which they have under the lease entitle them to a share in the compensation money. The decision of the learned Judge seems to us to be correct.
8. We accordingly dismiss this appeal. Having regard however to the fact that the appellants were on the land for a period of about ten years or so, we think we ought not to make them liable for the costs of this appeal because in our judgment they had enough justification to prefer this appeal, having regard to the extremely unsatisfactory nature of the judgment appealed from, and also in view of the fact that their occupation of the lands for a series of years may have created in their mind a genuine belief that they have some higher rights in the land.