M.C. Ghose, J.
1. This is an application under Section 25, Provincial Small Cause Courts Act, by the defendants against whom a decree for Rs. 383 odd has been obtained by the opposite parties on the ground that the defendants are bargadars cultivating the lands from the plaintiffs on a contract that they would pay half the produce to the plaintiffs, but that they failed to pay the same. The suit was for bhag rent for three years, 1340 to 1342 B. S., corresponding to 1933 to 1935. Four issues were raised in the lower Court which decided all of them in favour of the plaintiffs and decreed the suit. In this Court the learned advocate has argued the point that the Court of Small Causes had no jurisdiction to entertain the suit inasmuch as the defendants though bargadars really had some interest in the land and, as such, they were tenants and this was a rent suit which the Court below had no jurisdiction to try.
2. The facts of the ease are that the lands in suit, which are over 66 bighas in area appertaining to Khatian Nos. 231 and 212, formerly belonged to the defendants, that in the year 1923 the defendants and their cosharers transferred their raiyati interest to the plaintiffs and obtained from them a barga kabuliat Ex. 1 by which they were allowed to cultivate the land for one year on condition that half of the produce grown would be made over to the plaintiffs. After the end of the year the defendants have been allowed to hold on the same terms. The question is whether on these facts the defendants are to be considered tenants of the plaintiffs. The learned Subordinate Judge considered, on perusing the registered kabuliat Ex. 1 and also having regard to the amendments made in 1928 to Section 3(17), Ben. Ten. Act, that the defendants were not tenants and had no interest in the land and therefore the Court had jurisdiction to try the suit. The registered kabuliat has been read in this Court. It is clearly stated that it is a barga kabuliat for the period of one year and the defendants agreed to cultivate the lands and pay half the produce to the plaintiffs and, in default of payment of the produce agreed, to pay their money value to the plaintiffs. There is a clause towards the end of the kabuliat to say that at the end of the year the tenants will give up the lands to the landlord and will have no further rights therein. It is urged that the clause makes the defendants tenants on the lands.
3. Various reported decisions were cited in this Court namely, Shoma Mehta v. Rajani Biswas (1897) 1 CWN 55, Kade Mandal v. Ahadali Molla (1910) 14 CWN 629, Lalji Panday v. Barhamdeo Panday (1912) 16 CWN 15 89, Sheikh Pokan v. Rajani Kamal Chakravarty (1919) 6 AIR Cal 264 and Suresh Chandra v. Mohendra Chandra : AIR1931Cal91 . Upon considering the principles on which the above cases were decided it is clear that the question whether a bargadar in a particular case is a tenant or not is a question to be decided upon the facts of that case. Upon the facts of this case the learned Subordinate Judge has decided that the defendants are not tenants. Upon a consideration of the facts. I am of opinion that the decision of the Court below is not wrong. A good deal of argument was made in this Court whether Section 3(17) as amended in 1928 does apply to the facts of this case. That Clause denning a tenant states:
That a bargadar who cultivates land on condition of delivering a share of the produce to the landlord is not a tenant unless the landlord has expressly admitted him in a document as a tenant, or unless he has been declared by a Civil Court to be a tenant.
4. Now if that amendment applies in this case then it is clear that the defendants as bargadars are not tenants, for they have not been admitted by the landlords in any document to be their tenants and they have not been held by any Civil Court to be tenants. It is urged that as the defendants were bargadars from 1923, and the amendment came into effect in February 1929, their rights as bargadara could not be affected by the amendment of 1929. For this argument much reliance was placed on the case in Suresh Chandra v. Mohendra Chandra : AIR1931Cal91 . In that case a suit was instituted in the Small Cause Court in 1929 for the price of a certain share of the produce in respect of the years 1926 to 1928 on the allegation that they were labourers. The defence inter alia was that they were raiyats in respect of the suit lands and the suit was not maintainable in a Small Cause Court. It appeared that they were recorded as raiyats in the settlement Record of Eights. The Subordinate Judge held that according to the old Act he would hold the defendants to be raiyats, but as he thought that the amendments of 1929 might apply, he made a reference under Order 46, Civil P.C. It was held in the circumstances that the defendants were not affected by the amendments of 1929. In that case the suit was for a period before the amendment. In the present case the suit was for a period after the amendment. The other side cited the ease in Digambar Paul v. Tufazuddi Ijaradar : AIR1934Cal80 and urged that for a period after the amendment of 1929 the amendment will apply. Further, it is urged on behalf of the opposite parties that the amendment being of a declaratory nature, it will apply to the facts of this case. They quoted the case of Mukerjee, in K.C. Mukerjee v. Mt. Ramratan Kuer . Having regard to the facts of this case there is no doubt that the defendants are bound by the amendments made in Section 3(17), Ben. Ten. Act, in 1929. The rule is accordingly discharged with costs; hearing fee two gold mohurs.