S.K. Ghose, J.
1. These second appeals arise out of suits some of which were tried together in the first Court and some were tried separately. In this Court, these second appeals have been treated as analogous on points that are common. But there are differences on other points and these will appear in the course of the judgment. The appeals arise out of suits which were brought by the plaintiff as landlord to eject the defendants substantially on the ground that the lands in suit are comprised in non-permanent tenures, that the leases relating to these tenures have expired, and that the defendants had been served with notice to quit. The case of the defendants substantially is that the tenancies are occupancy holdings and not tenures, that even if they are tenures they are permanent, that in certain cases the tenants are entitled to perpetual renewal of the lease, and in all cases the notices to quit are not valid. Some of these suits were dismissed and some were decreed by the first Court. On appeal, the Subordinate Judge varied some of the decisions. These second appeals had been preferred by the unsuccessful party in each case. That is all that I need say for the present.
2. I take up first Second Appeal No. 1556 of 1934, which arises out of the lower Court's Title Appeal No. 582 of 1927 and Title Suit No. 49 of 1924. It appears that the tenancy was recorded in the Record of Eights as permanent tenure in 1913. The plaintiff brought a suit under Section 106, Ben. Ten. Act, to have the Record of Eights corrected by having the word 'permanent' deleted. The decision was that one of the conditions of the kabuliat should be inserted in the Record of Rights and the entry should be 'not transferable and liable to khas possession by landlord unless a separate meadi kabuliat according to the jama settled on the basis of measurement and assessment prevalent in the pargana is executed within one year after expiry of the mead.' In bringing the present suit the plaintiff has relied upon this entry in the Record of Rights and his case is that the term of the kabuliat had expired and that the tenant had not executed a fresh kabuliat as provided for. Therefore the plaintiff has sued to eject the tenants. The Court below in appeal has held that the defendants are not liable to be ejected, that it was the duty of the plaintiff landlord to offer the kabuliat for execution, but that the offer was invalid because the time given was only three months and not one year as provided for in the old kabuliat. Further, as to the defence that the tenancy is not a holding, the learned Judge has held that the defendants are precluded from reagitating this question after the decision of the ease under Section 106, Ben. Ten. Act, but apart from this, upon the evidence, the learned Judge has held that the defendants are occupancy raiyats and not tenure-holders.
3. The first question that arises in this second appeal is whether, assuming everything in favour of the plaintiff, the notice to quit was valid. The learned Judge has held that the notice was not valid on two grounds : First, that the rent claimed was Rs. 1400-12-3 in place of the existing jama of Rs. 898-13-0 and there is no explanation as to how this enhancement is arrived at, except that in the plaint it is stated that there is an enhancement of 2 annas in the rupee; and secondly, that there is no renewal clause in the draft kabuliat which was offered to the defendant. It is necessary at this stage to turn to the old kabuliat Ex. 5 (e). It is described as the doul kabuliat dated 7th Falgoon 1304 correspond-ing to 18th February 1898, settling 3953 bighas 6 cottahs of land at a jama of Rs. 1822-9-0 for a term of seven years. The jote is described as 'sarasari' which may be translated as implying a temporary or summary settlement. It is evidently not the first settlement of the lands and the holder is described as 'mal guzardar' which may only mean the 'rent paying holder.' The total jama settled is Rs. 2187-3-0 out of which the aforesaid sum of Rs. 1822.9.0 is talabi jama or demand rent after deduction of Rs. 364-10-0. Then it is provided that
the tenant shall pay at the expiration of the term and so long as a fresh settlement is not made, the said sum of Rs. 2187-3-0 inclusive of the amount remitted according to the demand of the instalments. The tenant shall enjoy the fruits and products of the land according to old custom and usage....The tenant shall have no right except raiyati right (raiyati sattya), for proper enjoyment (bhogopojogi) to gift, sell, give ejara pattan, transfer or partition the land without the consent of the landlord...After the expiry of the term if fresh doul kabuliat is not filed within one year according to rent that will be assessed after measurement and preparation of jamabandi according to the customary rate payable in the pargana (parganar chalit), then the jote will pass to landlord's khas collection.
4. It is the last clause of renewal which has given rise to considerable controversy in this case. As I read it, the period of one year within which the tenant is to file a fresh kabuliat is to run from the fresh assessment to be made by the landlord. That condition presupposes that there should be a survey and settlement made by the landlord in accordance with the customary rate payable in the pargana. The contention of the appellant is that the one year is to run from the expiry of the seven years which is the term of the kabuliat. But to read it like that would lead us to the absurd result that the work of survey and settlement might not be completed within one year, in which case it would not be physically possible for the tenant to offer a kabuliat at all within that time. The parties evidently contemplated that the rent was to remain fixed for seven years and that some time after seven years there might be a reassessment, and not that immediately after the 7th year the tenant was to offer a fresh kabuliat. Dr. Basak for the landlord appellant has pointed out that the term of the doul expired in 1904 and the landlord offered a draft in 1922, and he has contended that although the term of the lease had lapsed, the defendants on their part did not reply at all to the landlord's offer. It may be that the defendants were guilty of laches in not replying to the landlord's notice, but that does not necessarily make the notice to quit valid if it was invalid otherwise. It is further pointed out by Dr. Basak that in para. 9 of the written statement the defendants made a case that they did not execute the kabuliat of 1304, but the explanation may be that the predecessors of all the present defendants did not execute this kabuliat.
5. The contention however on behalf of the plaintiff appellant is that, because a long time has elapsed since the expiry of the seven years and the original tenant has since died therefore the tenancy no longer subsists, can certainly not be supported. In a case like this, where the execution of a fresh kabuliat by the tenant is dependent upon a fresh assessment, it is for the landlord to make the fresh assessment and then call upon the tenant to exercise his option. This proposition is supported by authorities which have been cited for the defendants-respondents, namely the cases in Moss v. Barton (1866) 1 Eq 474 and Hemanta Kumari Debi v. Sefatulla Biswas : AIR1933Cal477 . In such a case the landlord before he can treat the lease as determined is bound to give notice to the existing tenant for exercising an option of renewal. It may be added that there is no dispute now that the defendants have been in possession with the consent of the plaintiff and on payment of rent. Survey and settlement has since taken place, but the notice to quit which was served on the defendants gave them only three months' time within which to execute the draft kabuliats. In the view that I have taken of the kabuliat, this period was insufficient. On this ground alone the notice is invalid and it does not become valid by reason of the fact that further time has since elapsed. This finding is sufficient to dispose of the appeal in favour of the defendants-respondents. But it has been pointed out to us that this litigation has been of long standing and it will be useful and indeed necessary to deal with the other points which have been decided so as to minimize the chance of further litigation.
6. The next point that I propose to consider is whether the renewal clause in the lease is to be interpreted as permanent, that is to say whether in the succeeding leases the tenant is entitled to a similar renewal clause. As I have mentioned already, in the present case the plaintiff landlord did not offer another such renewal clause in the draft kabuliat which he tendered to the defendant, and this also has been taken by the Courts below as invalidating the notice to quit. Now, on this point, the first question is, whether the matter is concluded by the decision in Section 106 cases which applies to all the suits covered by these second appeals, the decision being read as meaning that the tenancies in question are not permanent. But it seems to me that the question as to whether the renewal clause is permanent or not does not raise the question of the permanency of the tenure in the same way as was raised in Section 106 cases. If it be held that the renewal clause was intended to be permanent, it would only mean that the tenant would have a contingent right of renewal every time, the renewal being subject to enhancement of rent to which the tenant might or might not consent. This, it seems to me, is not exactly the same thing as the tenure being permanent. It will be useful in this connexion to refer to the decision of the Special Judge in Section 106 cases. The judgment of the Special Judge Mr. Cargill, is dated 19th June 1918 and it has been treated as an exhibit in this case. As regards the question of permanency, the Special Judge thought that he was bound by the decisions of the High Court upon a similar doul to the effect that a renewal clause of this nature was inconsistent with the tenant having permanent interest, and having regard to the conditions against transfer-ability, transfer, etc. the Special Judge thought that these were not permanent tenures as defined in the Bengal Tenancy Act.
7. Dr. Basak has contended that according to the decision of the High Court in similar cases, the renewal clause is inconsistent with permanency: see the cases in Prodyot Kumar Tagore v. Sarat Chandra Das (1918) 5 AIR Cal 517, Mahomed Ayejuddin Mea v. Prodyot Kumar Tagore (1921) 8 AIR Cal 741 and Ganga Pershad Singh v. Ishri Pershad Singh (1918) 5 AIR PC 3. This was also accepted in the judgment of the High Court dated 27th November 1922 by which applications for leave to appeal to the Privy Council arising out of the oases under Section 106, Ben. Ten. Act, were refused: vide Ex. 61. While on this point, I may mention that Issue 5 which was raised at the trial of Section 106 cases, raised the question of status, viz. 'Are the defendants non-permanent tenure-holders? If not what is the nature of their tenancy?' Before the Special Judge, the tenants defendants raised a further question that they were raiyats. The Special Judge pointed out that it was too late to raise that question for the first time in his Court, but that at the same time if he had to decide that question he should decide that the tenancies were tenures. In any case, the result of these decisions in Section 106 cases was that the Record of Rights was corrected in the aforesaid manner by inserting the renewal clause of the kabuliat. Thus, the position is that we are thrown back on the kabuliat in order to give to the renewal clause its true interpretation. The law as to renewal clauses is well-summarized in Secretary of State v. A.H. Forbes (1912) 16 CLJ 217. It is there pointed out that if the option in a lease does not state the terms of renewal, the new lease will be for the same period and on the same terms as the original lease in respect of all the essential conditions thereof, except as to the covenant for renewal. This is the ordinary law as to a renewal clause, but what is contended for the tenants defendants is that this is not an ordinary renewal clause. The terms of the lease make it clear that the tenants are to continue after the expiry of the term until there is a re-assessment at the instance of the landlord and thereafter the renewal of the lease subject to the tenant consenting to the re-assessment within a year. It is only if the tenant does not consent to such re-assessment that the landlord would have right of re-entry and not otherwise.
8. The learned Judge below did not overlook the consideration that ordinarily a tenant would not be entitled to more than one renewal. But he has come to findings of fact which would go to show that this is not an ordinary case. It is admitted that the lease in question did not commence the tenancy. It is found that for long periods the tenants were in occupation without any lease and that the tenancies have been inherited for generations, the origin of the tenancy being unknown. It is also found that there are substantial buildings erected standing for 30 to 40 years to the knowledge of the landlord and that there has never been any ejectment suit. In fact, this was never in contemplation of any party before the preparation of the settlement record. Both the Courts below have laid stress on a manual of instructions issued by the original landlord Prosanna Kumar Tagore. It is termed the ' Rule Book ' and it divides the tenants into certain classes. The learned Judge has found, considering all the evidence, that the tenants in this case are to continue in possession if the instructions in the Rule Book be followed, which must have been the intention of the landlord, by taking fresh settlement so that the tenancies were meant to be perpetual in the family of the tenants. The Rule Book itself provided for the form of the douls to be executed by the tenants and the finding is that the douls in question are in accordance with these forms. It is also pointed out that the doul kabuliat itself provides that the Khod Jotedars possessed according to ancient usage and the learned Judge finds that this implies heritability at lenit. So far as Second Appeal No. 1556 of 1934 is concerned, the tenancy in question can be traced back according to the evidence at least to a chitta of 1237 B. S. The kabuliat of 1304 was executed by Joynal Abdin. There is evidence to show that his father and grandfather were also tenants and the present defendants are his heirs. The previous douls were filed by the landlord in settlement proceedings but they were not filed in the present case, though they were called for. Having regard to all these considerations, I find that the true meaning of the renewal clause in the kabuliat is not that the tenants are not entitled to one such renewal, but that they are entitled to such a renewal clause in all succeeding leases as a substantive part of the conditions of the tenancy.
9. The next question that arises for decision is whether the tenancy is an occupancy holding or a tenure. The Munsif found in favour of the tenants and on this and also on other findings he dismissed the suit. The Subordinate Judge also found in favour of the tenants upon the evidence, but he held that the tenants were not entitled to take advantage of this finding in view of the decision in the case under Section 106, Bengal Tenancy Act. Now so far as the finding as to occupancy status is concerned, it is clearly a finding of fact based upon evidence. The Subordinate Judge after finding that the origin of the tenancy is not known goes on to say:
Originally, the defendants predecessors held the lands khas. The legitimate conclusion thus is that they were raiyats. The fact that as for the greater portion is now held by sub-tenants could not affect the raiyats' rights if they had such rights at the inception of tenancy.
10. The leases were given for the purposes of cultivation and there is nothing to show that there was any condition which is inconsistent with the raiyati holding. The Subordinate Judge has also found that all the tenancies in question in these suits originally comprised areas of less than 100 bighas and that subsequently the areas increased to more than 100 bighas, the Subordinate Judge goes on to say:
It cannot be said that they (the areas) were above 100 bighas (at the inception of the tenancy) with any degree of certainty : and thus the presumption arising from area cannot be very strong.
11. In the pargana there were three kinds of tenants under Prosanna Kumar Tagore, viz. khod, fasal and chukani. The Subordinate Judge has found that all three classes must be raiyats. The word ' raiyati' is used in the kabuliat itself although stress is not given to the word as meaning raiyati as distinguished from tenure. Next the learned Subordinate Judge has found that the tenants themselves originally belonged to cultivating class. There is oral evidence to show that the defendants have been holding as raiyats. Thus the Subordinate Judge concludes by saying:
These circumstances are sufficient, to my mind, to rebut the presumption arising from the settlement records and I conclude that the khod tenants are raiyats.
12. Next, turning to other cases, the Subordinate Judge finds that the tenancies also dated as far back as the khod tenancy and covered also originally untenanted lands, the tenants being in possession by their own cultivation as raiyats. So the Subordi. nate Judge finds that if khod jotes are raiyati the fasal jotes must also be raiyati. Ultimately, he comes to the finding that all the tenants are raiyats, and if that is correct, the douls cannot convert them to be tenure-holders, and the learned Judge repeats by saying:
I have found that on the facts the tenants are raiyats and they have acquired rights of occupancy.
13. The proposition that these are findings of fact is supported by authorities: see the cases in Midnapur Zamindari Co. Ltd. v. Secretary of State (1929) 16 AIR PC 286, Wali Mohammad v. Mohammad Bakhsh , Prodyot Kumar Tagore v. Sarat Chandra Das (1918) 5 AIR Cal 517 and Jitendra Nath Roy v. Rai Charan Biswas : AIR1929Cal514 . That being so, the only point is whether the Subordinate Judge is right in thinking that the defendants are concluded by the doctrine, of res judicata as the result of the decision in the cases under Section 106, Bengal Tenancy Act. In order to apply this doctrine, it has to be seen, first, whether the question of raiyati was decided in those cases, and secondly, if not so decided whether the Court in those cases had jurisdiction to decide the question if such question could be properly raised. I have already referred to the decision of Mr. Cargill, Special Judge, which shows that the question was raised for the first time in his Court and he expressly refrained from deciding it on the ground that it was raised too late. Under Section 106, Bengal Tenancy Act, it was open to the tenant to apply to have the entry of tenure corrected. But they did not do so. The landlord sued only to remove the word 'Chirasthayi' leaving the word 'Madhasatya' where it was. The tenants although they raised the question of raiyati before the Special Judge had not made any application to have the record corrected within four months of the final publication of the Record of Rights. Therefore the Special Judge had no jurisdiction to decide the question of raiyati and in fact he did not do so. Issue 5, no doubt, raised the question of status but that question was limited to the question which was raised by the landlord in his application. The actual decision in these cases under Section 106, Ben. Tenancy Act, was that the entry of permanency was wrong and the status was determined by the particular clause of the doul kabuliyat which was entered in the Record of Rights. Thus as regards the status of the tenants as to whether they are occupancy raiyats, we are thrown back on the presumption of correctness of the Record of Eights and nothing more, and the question of res judicata does not arise. That the objection of res judicata fails when the test of jurisdiction is applied requires no authority, but we have been referred to the cases in Bir Bikram Kishore v. Rajjab Ali : AIR1930Cal238 and Dharani Kanta Lahiri v. Gaber Ali Khan (1903) 30 Cal 339. Dr. Basak has referred to the case in Jatindra Nath v. Azizur Rahaman (1923) 10 AIR Cal 433, but here the test of jurisdiction was not applied. It is hardly necessary to refer to Sections 107 and 109, Ben. Ten. Act, which lay down the rule of finality with reference to the question that has been decided in a case under Section 106, Ben. Ten. Act. This being so, the tenants defendants are not hit by the law of res judicata and the finding that they are occupancy raiyats is binding on us in second appeal. That being so, the present suit for ejectment cannot succeed. Second Appeal No. 1556 of 1934 must therefore be dismissed.
14. In this connexion, it is necessary to deal with Civil Rule No. 1350 of 1934. It appears that the plaintiff sued the defendants for mesne profits on the rental basis and got a decree on the basis of rent. In this Rule, the plaintiff as the petitioner contends that the decree as aforesaid be amended from a decree for rent to a decree for damages. As the plaintiff has not succeeded in the appeal, the rent decree will stand and the rule will stand discharged.
15. Now, I take up Second Appeal No. 1557 of 1934. As in the previous appeal, the plaintiff is the appellant. The Munsif decreed the suit. On appeal, the Subordinate Judge dismissed it on the following findings : As a result of the decisions in Section 106 cases, the defendants are precluded from contending that they are not tenure-holders. But for the decision in the Section 106 case, the learned Judge says that he would have found that the defendants are raiyats and not tenure-holders. The origin of the tenancy is not known. The purpose for which the tenancy was created could not be ascertained, but the defendants belonged to the cultivating class and Prosanna Kumar Tagore, the plaintiff's predecessor, also treated the tenancy as a raiyati holding. The khod tenants possessed the highest rights. In the dakhilas the tenants are described as khod tenants. The Subordinate Judge finds that the tenants are raiyats. They have long since acquired the rights of occupancy and are not liable to be ejected. Then, taking the defendants to-be tenure-holders, the clause for renewal of the lease according to the learned Judge indicates that the intention of the parties was that the tenants should be entitled to permanent renewal. This, the Subordinate Judge finds, is corroborated from the con-duct of the parties and the evidence as to long usage as furnished by the Rule Book and other evidence going to show that the tenancy was regarded as permanent in the family of the tenants. Ultimately, the learned Judge holds that the defendants are entitled to perpetual renewal of leases. Therefore, he holds that the plaintiff cannot evict the defendants. In this case, the doul kabuliyat in question was executed in 1289 B. S., in respect of an area of 217 bighas 11 cottahs at a rental of Rs. 155. It is described as sarasari jote. The settlement is for a term of nine years. It is provided that:
On the expiry of the term and so long as fresh settlement is not made according to fresh measurement and assessment of rent at the customary rates payable in the pergana, I shall pay the original jama, that is, Rs. 155 malguzari for the land in possession as mentioned in the doul according to the demand of the said kistibandi month by month and shall continue in possession on the same condition and enjoy the fruits and products of the land according to old custom and usage...Except raiyati right necessary for proper enjoyment you have and will have no right to make alienation by gift, sale granting ijara settlement, transfer by sale in execution of decrees obtained by anybody else and partition of the said jote without the consent of the Sarkar.
16. Dr. Basak appearing for the plaintiff appellant has conceded that in this case, as there is no time-limit within which the tenants are to execute a kabuliyat, the landlord must fix the rent and offer a draft kabuliyat which in fact they did not do in this case. What he has contended is that the kabuliyat was executed in 1882 by Jan Mamud Sarkar who died in 1908 and there being no words of inheritance the tenancy would at the most enure for the duration of Jan Mamud's life and after his death his heirs would be only tenants from year to year. It may be mentioned here that, whereas in Second Appeal No. 1556 of 1934 the plaintiff received rent from the present defendants and offered a draft kabuliyat to them, in this appeal (Second Appeal No. 1557 of 1934) the plaintiff also received rent from the defendants but did not offer any draft kabuliyat. Now, I have already discussed the effect of the kabuliyat which is in favour of the defendants' contention. The terms are almost identical with the doul in Uayan Munjari Dasi v. Khagendra Nath Das , and there it was held that the lease was binding so long as the tenants were willing to pay the prevailing rent. In addition to this the other points already found in favour of the tenants defendants apply to this case, namely first that on the terms of the kabuliyat the ten-ants defendants are entitled to perpetual renewal of lease and next, that the finding that the tenants are occupancy raiyats is binding on us in second appeal. In any case, the suit in ejectment must fail. Second Appeal No. 1557 of 1934 is therefore dismissed.
17. In Second Appeal No. 1557 of 1934 there is another objection as to the defect of party on the ground that one Nader Hosaain who was in joint possession with others has not been made a party to the suit. I do not think there is any substance in this contention. I next deal with Second Appeal No. 1615 of 1934 in which the plaintiff is the appellant. In this case, the kabuliyat is of the same terms as in Second Appeal No. 1556 of 1934 and the plaintiff landlord also offered a draft kabuliyat on similar terms as in that case. All points being the same, the decision in Second Appeal No. 1556 of 1934 will govern the decision in Second Appeal No. 1615 of 1934. Therefore Second Appeal No. 1615 of 1934 stands dismissed. The defendant appellant filed Second Appeal No. 1618 of 1934 in order to have a decree for mesne profits amended into a decree for rent. This appeal must succeed and the decree will be amended as prayed for. The decree for mesne profits in Money Suit No. 639 of 1928 will be amended into a decree for rent. I next deal with Second Appeals Nos. 1621 to 1625 of 1934 in which the appellants are the defendants. In these cases, the kabuliyats do not contain renewal clauses. The first Court dismissed the suits. On appeal, the Subordinate Judge decreed them. The defendants have appealed. The only point raised in support of the appeals is that the tenancies are occupancy holdings and not tenures. On this point the decision already recorded will govern these appeals. In these cases therefore the tenants defendants are entitled to succeed. These appeals must be allowed.
18. In Second Appeal No. 1624 of 1934 the plaintiff-respondent filed an application in order to have a decree for mesne profits made on the rent basis. As the defendants-appellants have succeeded, the decrees for mesne profits will be changed into decrees for rent. That application will be dismissed. The result is that all these appeals are decided in favour of the tenants defendants. They will get their costs in all the Courts.
19. I agree.