1. These eight appeals arise out of as many suits which were tried togather and determined by one judgment in the Court of first instance. The appeals have similarly been heard together in this Court.
2. The lands in question are situated within an estate known as the Jalpai Mahal of Perganna Jalamutha bearing No. 2715, formerly No. 130, on the revenue roll of the District of Midnapur. From Exhibit H 8 and Exhibit S we learn that these Jalpai lands were at one time part of the temporarily settled estate Jalamutha, the property of the zemindars of Garh Basudebpur, but being an area bordering on the sea, were taken possession of by Government for the purposes of its manufacture of salt.
3. In 1864 the manufacture of salt was abandoned and the Jalpai Mahal, therefore, passed from the hands of the salt agency on to the hands of the Land Revenue Authorities. For the first year 1271 the Collector, apparently as a temporary measure, leased the mahal to one Narayan Prosad Maiti at a rent of Rs. 4,800. The Board of Revenue next directed that the settlement should be made with the proprietors who had been in receipt of what is spoken of as a khalasi rent or nimak masahara. The order, it may be observed, is in accordance with the provision of Section 3 of Regulation VII of 1822 and in pursuance thereof the Collector by a letter or pcrawana, dated the 20th of June 1865, offered a settlement for 15 years, 1273 to 1287, to the then zemindars Kuar Narain and Gajendra Narain Roy. In anticipation of their taking the proposed settlement he further authorised them to grant amalnamahs in order that the lands of the mahal should be brought under cultivation. At the same time for the then current year 1272 he granted a second lease (Exhibit NI) to Narayan Prosad Maiti. The lease, it appears, was authorised on the 1st July 1865 and was formally executed on the 14th November of that year. The rent fixed, it may be noticed, is Rs. 5,800.
4. On the 13th of March 1866 (vide Exhibit XVIII) Kuar Narain and Gajendra Narain, the latter who was a minor through his sarbarakar Radha Gobindo Panja, finally declined to take the settlement offered to them and on the 30th March 1866 an ijara settle ment (Exhibit III 53) for 15 years (1273 to 1287 B.S.) was made with two persons named Radhika Prasanna Chandra and Krishna Prosad Singh.
5. Meanwhile [vide Exhibits XVIII and XV (2)] enquiry was made into the exercise by the zemindars of the authority given to them by the Collector and when the amalnamahs were collected and entered in a register (Exhibit 12), it was found that of the 12,000 bighas which the estate was then supposed to comprise, the zemindars between 21st Aghran 1273 26th Falgun 1273 4th December 1865 and 7th March 1866 had succeeded in parcelling out nearly 11,000 bighas amongst 72 amalnamah-holders, who have since been known as chakdars. Besides the amalnamahs so registered, Exhibit XIII, we may notice, shows that there was at least one other. Government has recognised these amalnamahs and (vide Exhibit III (53)] has enjoined their recognition upon its ijaradars. In the ijara, we may observe, Radhika Prasanna and Krishna Prosad were followed by one or both of the successors of Kuar Narain and Gajendra, i.e., Rani Hari Priya, Rani Anandamoyee and Babu Bhupendra Narain, up to the year 1299 (vide e.g., Exhibit III 52) and thereafter by one Kripa Sindhu Pal (Exhibits III 50 and III 51). All the ijaras after the 1st being, it appears, summary' settlements in anticipation of a Regular Settlement for which measurement proceedings were begun in 1876, were for one year only and from the expiry of the last on the 31st March 1895, the estate has been under the direct management of Government.
6. In a Record of Rights that has not been prepared under Chapter X of the Bengal Tenancy Act and was finally published on various dates in March 1910, the plaintiffs-respondents, who are holders of some of the amalnamahs above referred to, have been entered as tenure-holders and their rents have been settled on that footing. They bring the present suits under Section 104H of the Act for a declaration that they are raiyats with rights of occupancy and for a settlement of fair rent on that basis. They succeeded in each ease in the Court of first instance and in these appeals brought by the Secretary of State, the only question is whether the plaintiffs are tenure-holders or raiyats.
7. Before discussing the evidence, we think it convenient to set out some of the salient facts in each case.
8. In Appeal No. 473, the amalnamah (Exhibit VII) was taken by one Hara Chandra Bidya Bhushan and is in respect of an area estimated at 600 bighas in three mouzas (Juktibosan, Buraburi and Kourkhali). It is dated 21st Aghan 1273: and provides for payment of rent at the rate of annas 13 per bigha. On measurement by the ijaradars the area was found to be 1,166 bighas and the rent, therefore, became Rs. 947. At the present survey under Chapter X the area has been ascertained at 1,235 bighas, of which only 73 bighas were found in the khas possession of the plaintiff who is the son of Hara Chandra. The rent assessed (after an allowance of 35 per cent. of the estimated or ascertained assets) is Rs. 1,725.
9. In Appeal No. 94, the amalnamah is dated 28th Aghan 1273 and was taken by the present plaintiff Sib Prosad Misser and one Joy Narain Misra. The area demised is estimated at 300 bighas and is within Mouza Mangalkholi. The rent is at the rate of Re. 1 per bigha. Joy Narain, who according to the plaintiff was entitled to 10 bighas only, left plaintiff in sole possession.
10. At the measurement by the ijaradars the area was ascertained to be 482 bighas and the rent, therefore, became Rs. 482.
11. The Settlement Officers have not found 538 bighas of which 468 bighas are in the possession of the plaintiff's tenants, and have assessed the rent at Rs. 815.
12. In Appeal No. 64, the amalnamah is dated 3rd of Poush 1273, and was granted to Uma Prosad Singh, father of plaintiff No. 1, Ashutosh, and grandfather of plaintiff No. 2, Abinash. The land covered by the lease is in Mouza Buraburi, Kalapur, and was taken to measure 100 bighas with a rent at the rate of Re. 1 per bigha. At the measurement made by the ijaradars the area was found to be 123 bighas, but for some reason the rent was apparently reduced from Rs. 123 to Rs. 60. For this reduction an explanation is offered in the plaint, but we observe that this chakdar was the brother of one of the ijaradars. At the present survey and settlement the area has been found to be 144 bighas, of which 23 bighas are not under cultivation and 121 bighas are in the possession of tenants. The rent assessed is Rs. 171.
13. In Appeals Nos. 59, 60 and 62 the amalnamah is one and the same. It is dated 27th Aghran 1273 and is in favour of six persons, Ram Sundar Kar, Indra Narain Kar, Durga Prosad Kar, Akhay Narain Das, Lakhi Kanta Acharjee and Brindabun Maiti. The land is in Buraburi, 2nd Gerd, and was estimated at 270 bighas, with a rent at the rate of Re. 1 per bigha.
14. On the measurement by the ijaradars the area became 470 [bighas with a rent of Rs. 40. Out of this Ram Sundar Kar took 67 bighas, Indra Narain Kar 142 bighas and Lakhi Kanta Acharjee 70 bighas.
15. Ram Sundar Kar is the predecessor of the plaintiffs in Appeal No. 59 and Lakhi Kanta of the plaintiff in No. 62, while the plaintiffs in No. 60, of whom some are also plaintiffs in No. 62, have acquired by purchase one fourth of Indra Narain's 142 bighas.
16. At the present survey, the lands of Ram Sundar Kar (Appeal No. 59) have been found to measure 77 bighas, of Lakhi Kanta (Appeal No. 62) 76 bighas and of Indra Narain, that is, the one-quarter share in Appeal No. 60, 34 bighas. In Appeal No. 59, 50 bighas, in Appeal No. 62, 59 bighas and in Appeal No. 60, 17 bighas are in the hands of under-tenants.
17. In Appeal No. 63 the amalnamah is in favour of two persons Nasiram Naik and Mohan Choudhury, is dated 28th Aghan 1273, covers approximately 50 bighas in Buraburi, Gerd II, and assesses the rent at Re. 1 per bigha. At the measurement of the ijaradars Nasiram Naik was found in possession in his half share of 105 bighas and these lands passed to the plaintiffs Raghu Nath Missir, Priya Nath Missir and others by purchase at a sale in execution of a decree against Nasiram's son Umesh. The new ascertained area is 121 bighas, of which 111 bighas are in the possession of under-tenants and the rent assessed is Rs. 196.
18. In Appeal No. 61 the amalnamah is dated 28th Aghan 1273 and is in favour of Sonatan Sant and Narayan Manna. The area is stated approximately at 25 bighas in Buraburi III Gerd or Mangal Khali and the rent is Re. 1 per bigha. The ijaradars found in the share of Narayan, who is the predecessor of the plaintiffs, 62 bighas, and the lands have been now measured 61 bighas, of which 25 1/2 bighas are in the possession of under-tenants.
19. All these amalnamahs, it may be observed, take effect from the beginning of 1274 Amli, fix the rent for the first year and provide that after measurement and assessment a lease or patta will be granted for the period of settlement then under contemplation. They further provide for subsequent renewals with due regard to the terms of such subsequent settlement as the lessor might in future obtain from the Collectorate.
20. In coming to his conclusion that the plaintiffs-respondents are raiyats, the Subordinate Judge appears to proceed on his view of the terms of the amalnamah, which though not decisive are in his opinion more consistent with the creation of raiyati interests. He next relies on (1) the acceptance by the under-tenants of dakhilas [Exhibit I series in part and (counterfoils) Exhibit II series] and their execution of kabuliyats (Exhibit III series), in which they are described as 'korfa' tenants, (2) on recognition by Government implied in the use of the word 'raiyats' in three kabuliyats (III 50-52) executed by the ijaradars in favour of the Secretary of State in 1892, 1893 and 1894, (3) on the description of the mehal in dakhilas (Exhibit I series) granted by the ijaradars to the chakdar plaintiffs, (4) on the persistent assertion by the latter of their status as raiyats, and (5) on recognition by the Courts to be found apparently in the use of the word 'raiyat' in two judgments of this Court [Exhibits XIII (2) and XIII (3)] dated the 10th June 1868 and 13th December 1872. He believes the oral evidence of the plaintiffs to the effect that on the creation of their tenancies the plaintiffs found their chaks vacant, cleared the jungle, erected embankments and themselves cultivated for some years before letting out portions to under-tenants. He has disbelieved the witnesses examined for the defence, who say that they were in possession from the time of the first or original ijaradar Narayan Prosad Maiti and has discredited the amalnamahs (F1 to F9) and the dakhilas (B46 to 49, B67, B94, B135 and B367), which purport to have been granted by him. He disbelieves also Exhibit G, a hukumnamah, which purports to have been granted by Hara Chandra Bidya Bhusan in 1276, and he is silent about the other dakhilas (Exhibit B series) which the defendant's witnesses produce. He then finds support for his opinion in certain irrelevant documents (Exhibit XXII 2, 4 and 5) while he misconstrues others (e.g., Exhibits 8H, N1, and XXII 7) and ignores other pieces of evidence of more or less importance, e.g., Exhibit S, Exhibit Ac, D, the E series, J, and K1 to 3.
21. We have then first to examine the amalnamahs. Two of these have been placed before us, namely. Exhibit VII 2 in favour of Hara Chandra Bidya Bhusan and Exhibit VIII in favour of Sonatan Sant and Narayana Manna, and it is common ground that all the amalnamahs were in one and the same form. After reciting the orders of the Board to the Collector they authorise the grantee to enter upon and by cutting jungle and otherwise to reclaim the land within the boundaries supplied by him and require him to pay for the first year rent at a rate varying from 4 annas to Re. 1 per bigha. They next provide for measurement, and assessment for the fixation of a rent in accordance therewith, and for the grant of a lease for the period of the settlement between Government and the zemindars. They next forbid illegal manufacture and the growth of prohibited crops and lastly provide for renewals of the lease on terms dependent upon the terms of future settlement obtained by the lessors from Government.
22. These amalnamahs are thus in effect reclamation leases, such as may be granted either to actual cultivators or to capitalists and middlemen. The covenant and the terms of the covenant regarding subsequent renewals go to suggest, if anything, that the tenancies created by the leases are regarded as tenures, but however that may be, we do not agree with the Subordinate Judge in the view that they are more consistent with the creation of raiyati interests. In this opinion he appears to have been largely influenced by his speculations regarding the desires and policy of Government. For these theorisings there appears to be no foundation and, except in so far as the Collector by the order of the 20th June 1865 conferred a general authority upon the zemindars, he is in error in thinking that the Collector, his superior officers or Government are to be held responsible for these amalnamahs. Obviously the Collector anticipated acceptance of settlement by the zemindars and in his order appears to have been actuated merely by consideration for their interests, inasmuch as they had a preferential claim to the settlement under consideration and to subsequent settlements. The amalnamahs were granted to all sorts of persons and range in area from 9 bighas given to Mukunda Maiti and four other cultivators at Re. 1 a bigha to 2,000 bighas at 12 annas a bigha given to Radha Govinda Punja, who appears to be the then sarbrakar or manager of the S-annas share in the Jalamutha estate. There is nothing to show that the Collector gave any instructions regarding the terms of the leases, the persons or the classes of persons to whom the lease should be granted, or the areas to be let out to each. Further, there is nothing to show that he even knew what had been done, until on the 13th of March 1866 he instituted enquiries and had the amalnamahs collected and registered (Exhibits XVIII, XV 2 and XII). Naturally he and his superior officers, unless they were in a position to show bad faith, would feel themselves concluded by any amalnamah granted between the datts of the Collector's order and the date (13th March 1866) of the zemindars' final refusal of settlement, and in their acceptance or approval of the amalnamahs more than this does not appear to be implied. Thus the policy of the Government has little or no bearing on the question, and should we seek to ascertain the policy of the zemindars which might be more pertinent, we find indications of that policy only in the amalnamahs themselves as collected in Exhibit XII and in the zemindars' refusal of settlement immediately after they had granted the same.
23. As the amalnamahs creating the tenancies now in question are, in our opinion, such as might be granted either to actual cultivators or to would-be middlemen, we have then to examine and consider the surrounding circumstances, the conduct of the parties and such other matters as may throw light upon the original purpose and intention of each of the tenancies now in question.
24. When proceeding to do this we are of opinion that we should first clear away the misconceptions or some of the more important misconceptions under which the Subordinate Judge appears to have been labouring.
25. We have then first to observe that he has admitted in evidence a series of inadmissible documents, namely, Exhibits XVI, XXIII to XXII 5, XXII 7 of date 23rd September 1878, XXII 8 and XXII 9. Exhibit XVI refers to resumed lahheraj lands in Perganna Naruamutha and the others, including three more particularly mentioned by the Subordinate Judge. Exhibits XXII 2, 4 and 5 refer to settlement proceedings in the years 1875 to 1878 in connection with the temporarily settled estate of Majuamutha and the main Jalamutha estate. They have no reference to and no bearing upon questions arising in connection with the Jalamutha Jalpai Mahal and, except in so far as XXII 4 throws some light on the history of the Jalamutha estate and of its zemindars, are wholly irrelevant.
26. We should next notice the Subordinate Judge's reference to the Collector of Midnapur's letter of loth May 1889, which has also been marked Exhibit XXII 7. From Exhibit XXII 6 it appears that a commission appointed to inquire into floods in Midnapur has suggested the removal of embankments in the Jalpai area. In reporting upon this recommendation (and his report deals with six Jalpai mahals) the Collector in his 7th paragraph wrote as follows:
27. 'Under the settlement-holders have sprung up a large body of chakdars or raiyats with rights of occupancy, who have spent large sums on embankments, clearing jungles and other improvements which will all require to be paid for.' The Subordinate Judge reads this as an expression of the Collector's opinion or an admission by a Revenue Officer that the chakdars in Jalamutha Jalpai including the present plaintiffs are raiyats with rights of occupancy. Now it is quite clear that the Collector was not considering and did not intend to make any pronouncement upon the status of the chakdars of Jalamutha Jalpai. In fact in the then still pending settlement proceedings to which he refers in his 4th paragraph, these chakdars were being treated as tenure-holders (vide the jamabandis referred to by the Subordinate Judge and the objections of the chakdars, Exhibits XXIV series). Moreover, in the sentence on which the Subordinate Judge lays stress, the word or' is to be read distributively. Improvements have been made in some cases by chakdars, in some cases by raiyats and these improvements will have to be paid for (in this connection vide also Exhibit XXII 6, paragraph 3). There is thus no foundation for the Subordinate Judge's suggestions that in 1889 the Collector of Midnapur was of opinion that the chakdars of Jalpai were raiyats with rights of occupancy.
28. We may next consider how for the Subordinate Judge is correct in saying that the chakdars (of this Jalpai Mehal or the plaintiff chakdars) have been recognised by the Courts as raiyats.
29. The. plaintiffs have put in evidence the judgments and decrees in four suits.
30. In the first of these, Suit No. 5 of 1867-68, the predecessors of the plaintiffs in Appeals Nos. 59, 60 and 62 sought to obtain from the ijaradars, Radhika Prasanna and Kristo Prosad, a patta for the years 1275 to 1288 Amli, i.e., for the 14 years of their ijara following the first year of the amalnamah and in accordance with its terms. The judgment and decree of the Deputy Collector is Exhibits XIV 2, of the District Judge on appeal XIV, and of this Court on second appeal XIII (2), In this suit the amalnamah-holders succeeded.
31. Exhibits XIII (3) is the judgment of this Court in second appeal in a similar suit brought by one Mohan Maiti and is dated 13th December 1872. Exhibit XIII (1) is the judgment dated 13th August 1870 of the District Judge in a suit brought by the ijaradars aginst one Ekadasi Manna for the delivery of a kabuliyat not consistent in its terms with the latter's amalnamah, which it appears had not been produced for entry in the Collector's registers, Mohan Maiti and Ekadasi Manna, it may be observed, are not predecessors-in-interest of any of the present plantiffs. The 4th suit is a rent suit brought by the ijaradars against Sonatan Sant and Narayan Manna, predecessors of the plaintiffs in Appeal No. 61. The suit was decreed and the decree further directed that on default of payment within 15 days the defendants should be ejected from that jote. The judgment and decree are dated 14th May 1872 and are Exhibits XIII (4) and XIV (5).
32. There is a fifth suit (vide Exhibits XIII 5 and XIII 6), but for present purposes that is not material.
33. On the fourth suit to which we have referred, it is suggested before us that the prosecution of the first three for pattas and kabuliyats in the Court of the Deputy Collector shows that the chakdars who were plaintiffs in the second and defendants in the third were recognised as raiyats. It is similarly suggested that the order for ejectment in the fourth implies a similar recognition. But on examination of the provisions of Act X of 1859 it will be found that suits for delivery of pattas and kabuliyats, which are to be brought in the Collector's Rent Courts [vide Section 23 (1)], are not limited to the case of raiyats. Similarly, under Act VIII of 1869, Sections 22 and 23, ejectment in default of payment of the arrears decreed may be directed in the case of raiyats and also in the case of certain leaseholders.
34. But these contentions do not appear to have been advanced before the Subordinate Judge, and what he refers to and relies upon is a passage in the judgment [Exhibit XIII (2)] in the first suit in which the learned Judges say, 'the effect of the settlement with the plaintiffs was to put them in the position of raiyats for one year with a right of renewal.' In other places too and also in Exhibit XIII 2 the defendants are spoken of as raiyats.
35. But the word raiyat is not infrequently used to denote tenants of all or various classes and it is not clear that the learned Judges were here attaching to the word its strict legal signification.
36. Neither in these suits nor in any of the other two suits had any issue been framed or question raised as to the status of the chakdars. In his judgment, Exhibit XIV (1), the District Judge indeed spoke of them as 'intermediate tenants.' Neither the Government nor the zemindars were parties to these suits and it is perhaps not without some importance that the ijaradars were themselves chakdars (vide Exhibit H 12 and P.W. No. 2).
37. Apart, then, from the use of the word jote in the judgment of the Deputy Collector in the first suit (Exhibit XIV 2) and in the decree (Exhibit XIV 3) of the Munsif in the fourth suit and the use of the word 'raiyats' in the judgments of this Court (Exhibits XII 12 and XIII 3), there is no foundation for the Subordinate Judge's statement (which is in part the basis of his decision) that by the Courts the plaintiffs had been recognised as raiyats. In fact, it is now that for the first time the question of their status comes before the Courts for judicial determination.
38. The question of recognition by Government may be next examined. In this matter the Subordinate Judge appears to rely on Exhibits III 50 to III 52, also Exhibit III 54. The last is the kabuliyat of the ijaradars Radhika Prasanna and Krista Prosad and is dated 30th March 1866. They undertake to respect the amalnamahs granted by the zemindars prior to their ijara to settle the remaining lands with tenants, and to realise the rents according to law. In this document as placed before us we find no reference to raiyats. The other three documents are also kabuliyats of ijaradars but bear dates in December 1892, 1893 and 1894. In these the ijaradars undertake to 'realise rents from the raiyats according to law.' This the Sub-Judge apparently reads as recognition or admission by Government that all the tenants in the mahal holding immediately under the ijaradars, including, therefore, the plaintiffs, are raiyats. We venture to think that to put this interpretation upon these documents is preposterous. In the settlement proceedings which had not concluded in 1889 and were never brought to a conclusion, the Revenue Authorities were contending, as we have already shown, that the plaintiffs and other chakdars were tenure-holders, yet it is to be supposed that they have here gone out of their way to specify their status as raiyats. In such documents any definition of the status of the tenants paying their rents to the ijaradars is unnecessary and raiyats here can only mean tenants in general. In fact the documents are on a common on standardised form (Form No. 6 of the Settlement Manual of 1988), and it is common knowledge that such forms are seldom or never altered so as to bring them into conformity with the actual facts in each individual case. In the receipts granted by Government since the estate came under khas management, i.e., since 1st April 1895, no description of the nature of the tenancy is given, and we have been referred to no document, act or proceeding (other than the four kabuliyats) lending any support to the Sub-Judge's finding that Government had recognised the plaintiffs as raiyats.
39. We may now consider the settlement proceedings under Regulation VII of 1822, which began in the year 1876. The resettlement of the main Jalamutha estate was then in progress and the operations necessary to a regular re-settlement of the Jalpai Mahal also were, therefore, undertaken. Exhibit S, dated the 5th July 1876, is the roidad of the Deputy Collector in charge. Exhibit HSI, a report on proposed rates of rent submitted by another Settlement Officer, shows that inasmuch as the proceedings of 1876 were undertaken four years before the expiration of Radhika Prasanna's ijara, they were not brought to a conclusion. On the basis of the work then done fresh proceedings were begun in 1881 and Exhibit H8 is the rate report submitted on the 30th of September 1883. Exhibit XXII 7 of the 18th May 1889, paragraph 4, shows that even then the Settlement had not been concluded and the documents marked Exhibit IV, bearing dates in January and February 1888, show that the chakdars declined to sign the jamabandi in which they were treated as tenure holders, and their under-tenants described as raiyats with right of occupancy. No doubt it was because of the attitude of the chakdars that the proposed settlement was in fact never completed, but in this connection the Subordinate Judge should have observed that Regulation VII of 1822 did not empower Settlement Officers to settle rents in the case of tenants subordinate to the settlement-holder and that the Rent Settlement Act (VIII of 1879) intended to supplement the provisions of the Regulation was repealed by the Bengal Tenancy Act which came into force on the 1st November 1886. No inference adverse to Government is to be drawn from the fact that Government did not succeed in initiating a Record of Rights under the Bengal Tenancy Act before 1905 or in completing the same until 1910.
40. The Subordinate Judge has made no reference to Exhibit S, but he has made use of Exhibit H8 to show, 1st, that in 1272-73 the object and intention of Government was to make settlements with actual cultivators, i.e., to create raiyati interest, and (2) to show that at that time (1883) the case of the under-tenants was not that they had secured amalnamahs from the original ijaradar Narayan Maiti and had been on the land from 1271 or 1272, but was that the subsequent ijaradars and their under-tenants had brought the lands under cultivation. Now in Exhibit H8 in the 3rd paragraph (the paragraphs are not numbered) the officer writes... 'The Board of. Revenue directed the settlement to be made with the proprietors... The Collector accordingly wrote... to the proprietors and also empowered them to let out the lands to cultivators. They accordingly made a settlement of many blocks of land with several persons who are now known as chakdars.' In a subsequent paragraph (the 14th) he again writes: 'during the ijaradari settlement the ijaradars were empowered to let out the lands to cultivators for the purpose of bringing them under cultivation. These ijaradars accordingly let out the lands in blocks to chakdars, who in turn have sublet in small plots to cultivators who are called by the chakdars korfa raiyats. These persons cleared the jungle and brought the land under cultivation. Some of the chakdars are the actual cultivators or cultivate the land through bhag chasis from whom they get half the produce in lieu of rent.'
41. The original letter or order dated 20th June 1865 is not forthcoming, but if the Settlement Officer intends to say and is right in saying that the words 'to cultivators' were to be found therein and if we are to understand thereby that the Collector intended that the letting out should be restricted to actual cultivators of the soil, the Subordinate Judge would be right in saying that that would go to indicate that the purpose of Government was to create a raiyati interest, but in earlier references to this parwana or order (vide Exhibit XVIII of 13th March 1866, XV 2 of 12th May 1866, XVI of 7th February 1876 and Exhibit S of 5th July 1876), we do not find any such restriction upon the authority conferred upon the zemindars, and after all, as we have already pointed out, it is their policy and not the policy of Government that is material. It is next clear that in the second paragraph above cited the Settlement Officer, if not making some confusion between proprietors' and ijaradars,' is referring to the ijaradars Radhika Prasanna and Krishna Prosad and to the tenants whom by their kabuliyats (Exhibit III 53) they were empowered to settle on the remaining lands. In any case there is nothing here to support the Subordinate Judge in saying that the under-tenants at that time tried to make out that the ijarad rs themselves cultivated the lands. On the contrary the Settlement Officer clearly states that the raiyats of the chakdars (except in so far as the chakdars were themselves actual cultivators) cleared the jungle.
42. When we next turn to Exhibit S, the roidad dated 5th July 1876, we, in substance, find the Settlement Officer stating (doubtless as the result of the inquiries made in pursuance of the provisions of Section 9 of the Regulation) that in the years 1271 and 1272 the ijaradar Narayan Prosad Maiti had let out the jalpai lands to tenants for bringing them under cultivation and that these tenants had in fact brought the lands under cultivation by clearing jungle at their own costs. He, therefore, prepared a jamabandi classifying as occupancy raiyats those tenants who though then under the chakdars had been in possession from before the formation of the chaks. With these materials before him we are at a loss to understand how the Subordinate Judge came to think or say either that the story now told by the defendant's witnesses of their possession from the time of Narayan Maiti is a new invention or that the decision of the Settlement Officer of that time (Bijoy Krishna Bose) was against them or most of them. The witnesses who speak of filing documents before the Settlement Officer (with one exception, D.W. No. 6) speak of Bijoy Krishna Bose and the measurement of 1282=1876, while the Subordinate Judge refers to khatians of the measurement of 1882.
43. We shall now examine the kabuliyats (Exhibit III series) and the dakhilas or counterfoils (Exhibits I and II series). Of the kabuliyats we find 81, of which 48 are in favour of the plaintiff or the predecessors of the plaintiff in Appeals Nos. 473 and 33 are in favour of the plaintiff in Appeal No. 94. Of the first lot 38 bear different dates in the years 1871 and 1872 while 10 are of the years 1869 and 1890. Of those in Appeal No. 94 all are of the years 1871, 1872 and 1873. The settlements are, no doubt described as 'korfa' settlements in respect of 'korfa' jotes, but in the kabuliyats the landlords are not described as raiyats and in each case there is a covenant for renewal on the expiration of the term (five years). The plaintiffs-respondents would have it that 'korfa' means the undertenant of a raiyat but that is not so. A 'korfa' tenant is a sub-lessee whether of a talukdar (the description given to Hara Bhusan) or of a raiyat, and as an instance of this we may refer to Exhibits III 50 to 52 where the ijaradars are forbidden to make 'korfa' settlements, that is, to sublet. The tenants examined on behalf of the plaintiffs, e.g., P. Ws. Nos. 11 and 25, when cross-examined on this point, say they do not know what is meant by 'korfa.' Thus it is clear that these kabuliyats throw little or no light on the question and the same remark applies to the counterfoils (Exhibit II) and to the receipts (Exhibit I) in so far as they are receipts granted by the plaintiffs to their tenants. To the description of the mahal given on the receipts granted to the plaintiffs, 'mahal raiyati khudkasht and paikasht,' no importance can be attached. We would have then to assume that every tenant Was of the same cla Sections Moreover, these receipts are granted by ijaradars and the first ijaradars Radhika Prasanna and Krishna Prosad were themselves chakdars.
44. We will now deal with the ijara settlements effected with Narayan Prosad Maiti. The first of these was for the year 1271, and the second for the year 1272. The first kahuliyat has not been produced and in this Court some comment on its non-production has been offered, more especially in view of the fact that in the plaint it was alleged that this settlement was in respect of jalkar or fishery rights only. We are informed from the Bar that the document is not to be found, and in the Court below the loss of the document was evidently not questioned and the case proceeded on that footing. From the references to the document to be found in the second kabuliyat, Exhibit N1, and in Exhibits S, H (8) and XV (I) it is clear that the first ijara with Narayan Maiti like the second was of the lands of the jalpai mahal. It is then pointed out that the kabuliyat produced, N1 for 1272, is in respect only of the 8-annas share of the minor Gajendra Narayan, then under the Court of Wards. That is so, but though the kabuliyat in respect of the second 8 annas is not forthcoming, it is quite clear both from N1 and from the other papers above referred to that the settlement was in respect of the 16-annas estate. No doubt, as pointed out by the Subordinate Judge, by Exhibit N1 no express power was given to Narayan Maiti to make settlements with tenants or to clear jungle, and as pointed out here, he undertakes to put no obstacle in the way of cultivation in 1273. But even if he has no power to grant leases to endure beyond the period of his own ijara, and also undertakes to give up quiet possession at the end of his term, it is exceedingly improbable that an ijaradar, who pays a rent of Rs 4,800 in his first year and undertakes to pay Rs. 5,800 in his second, has no cultivating tenants on the lands of his ijara. Indeed, Exhibit N1 speaks of tenants, and the suggestion here is that the reference is to the chakdars. But the first of the amalnamahs did not come into existence until a month after the formal execution of N, and were not to take effect until the following year 1273, or the Amli year 1274.
45. The amalnamahs (Exhibit F series) and the dakhilas [Exhibits B(46) to (49) B(67), B(94), B(135) and B(367)] discredited by the Subordinate Judge may be next considered. We have already shown that there is nothing improbable, on the contrary it is highly probable, that under Maiti there were cultivating tenants on the jalpai lands. We have also shown that the Subordinate Judge is wrong in thinking that the assertions of possession from Maiti's time are now made for the first time. Cultivating tenants do not leave their holdings simply because of a change in the personality or status of the rent receiver. The documents are produced either by old men, who say they received them from Narayan Maiti, or by the descendants of the actual recipients. In the case of one F(3) the evidence of the witness Brojo Maiti (D.W. No. 12) does not appear very satisfactory and this amalnamah and the receipt with it (B 67) may be left out of consideration. So also, though we see no reason why it should have been forged, B 47 may also be ignored, as it is a receipt for grazing or pasturage rent and has no bearing on the present question of status. The others we have carefully examined and they appear to us to be genuine. The reasons given by the Subordinate Judge for disbelieving them are either trivial or erroneous. In the signatures the differences are such as will be disclosed on the examination of any two signatures of one and the same man. In his remarks on dates and years the Subordinate Judge has overlooked that in this District the Amli year prevails. Thus though, speaking generally, in Government offices and in official documents we find dates in accordance with the Bengali era, in private documents the Amli year, which is five months ahead of the Bengali year, is in use. Thus in the ijaras (Exhibits N1 and II 153 we find the Bengali year, while in the chakdars amaln mahs Exhibits VII and XII) the dates are Amli dates. So with these receipts. Exhibit B135, criticised by the Subordinate Judge, bears date 4th Magh 1273, that is, the Amli date corresponding with 3rd Magh 1272 Bengali and the 15th January 1866, when Narayan's ijara had not expired. Similary, the hukumnamah, Exhibit G of 1276, with the signature Hara Chandra Bidyabhusau divided by the seal, appears to us to be genuine, and so also do the dakhilas of the B series generally, Except, however, in so far as they show long possession, they throw little light on the status, as then recognised, of the tenants, though in the bulk of them the term 'korfa' on which the chakdar plaintiffs rely is to be found. We have already commented on the use and meaning of this word. To close this part of the case, we may lastly notice that of Narayan Maiti's amalnamahs and dakhilas, F(4), F(5), F(7), F(8) and B (135) affect Appeals Nos. 473, F(2), F(9), B46 to 48 and B367 apply to Appeal No. 94, F(l) and B49 to Appeal No. 62, F(6) to Appeal No. 59 and B94 to Appeal No. 61.
46. This brings us to the oral evidence. Thirty witnesses have been examined on behalf of the plaintiffs. Their evidence generally is to the effect that the chakdars, personally or by their labourers, erected embankments, cut jungle, grew crops for some three years and then let out larger or smaller portions of their chaks to undertenants. We have no doubt that the chakdars did erect embankments, more particularly the larger embankments, intended for the protection of a whole block and not merely one under-tenant's holding. We have also no doubt that they assisted in the cutting of jungle, but we think also that their labour and expenditure in this direction have in general been greatly exaggerated. Thus Kamala Kanta Manna (P.W. No. 20) in cross-examination admits that in his chak the cost of erecting bunds was not more than Rs. 50 and P.W. No. 15 describes the jungle as bush jungle, which is what was to be expected on these jalpai lands used as they had been for years as a source for the supply of firewood for the manufacture of salt. When, however, they say that the chakdars found no tenants on the lands and did not introduce tenants for the first three years, we are unable to believe them. We are in a position to check the statements of some of the witnesses by reference to the suit brought in 1867-68 and decided on the 31st July 1867, corresponding with 16th Sraban 1274 B.S. and 17 Sraban 12 4 Amli. The suit was for a palta. and one of the questions was what should be the rates of rent. We there find [vide Exhibit XIV (1)] that the then plaintiffs, who are the predecessors in-in-terest of the plaintiffs in Appeals Nos. 59, 60 and 62, stated that of their tenants one paid rent at the rate of Rs. 2 per bigha. In the face of this document it is idle now for witnesses to say that in the chak or chaks in question in Appeals Nos. 59, 60 and 62 there were no under-tenants before 869.
47. This is one of the three suits to which the Subordinate Judge refers as supporting this view of the oral evidence. The other two appear to be the one brought by Mohan Maiti (Exhibit XIII 3) and the one brought against Ekadasi Manna (Exhibit XIVI). In the last we find nothing bearing on the present question and in Exhibit XIII 3, though there is no doubt a statement that the holding had been improved by the plaintiff chakdar by the erection of embankments and the clearance of jungle, whether these improvements had been effected by the chakdar personally or through his under-tenants, was not considered and was not a question for consideration in that case. We have already shown also that Mohan Maiti and Ekadasi Manna have no connection with the chaks with which we are now concerned.
48. Some 54 witnesses have been examined on behalf of the defendant to speak of their possession from the time of Narayan Maiti or from the beginning of the chaks. Of these 38 speak of settlement from and (or) payment of rent to Narayan Maiti. The 58 generally speak of clearing such jungle as they found on the land, tree-stumps or roots, bush jungle, grass, young plants and in some cases trees. The Subordinate Judge has expressed the opinion that in the depositions of the witnesses examined after the 6th of March there are developments, but we find no change in the character of the evidence. Before the 7th of March, that is to say, on the 6th only five witnesses had been examined. The first witness speaks of land taken in Ram Sundar's chak (Appeal No. 59) in 1311 and of 1 bigha 7 Cottas cleared by his father in Durga Prosad Acharjyas's chak (Appeal No. 62). On the latter, he says, there were roots or stumps, a few trees and some 10 to 25 plants, 1 or 1 1/2 years old. The second witness says he took settlement in 1271, cleared 5 1/2 bighas and cut away 50 to 60 trees. The third, fourth and fifth witnesses (Appeals Nos. 63, 94 and 62) say that there was only grass (in the case of witness No. 4 grass and bushes) on the lands taken by them, and attribute the removal of heavier jungle to the workers under the Salt Agency for which these lands supplied fuel. The only distinction in fact between the evidence of the earlier and of the later witnesses is that the witnesses after the 6th were examined and cross-examined in much less detail. We have already shown that the other reasons given by the Subordinate Judge for disbelieving these witnesses are unsound. He has over-looked the absence of a rent-free period in the amalnamahs of the chakdars. The settlements with Narayan Maiti (Exhibit N1) make the story of. the defence witnesses probable and not improbable. Exhibit S shows that the decision of the then Settlement Officer was not against them, and also that the story they now tell is not being told for the first time. As regards jungle clearing and erection of embankments, in the three suits to which the Subordinate Judge refers, there is no decision or expression of opinion as between chakdars and undertenants. To the recitals in the kabuliyats (Exhibit III series) which secure to the executants a right of renewal, we do not attach importance. In short, we believe that the evidence of the defendant's witnesses is substantially true and as we have already indicated [Exhibits F(3) and B(67) excepted], we accept as genuine the amalnamahs and dakhilas which they produce.
49. We have now completed our examination of the evidence in so far as it affects more or less all the appeals before us. We have now to take each case separately and examine such evidence as there may be special to it.
50. Appeal No, 473.--Here the area of the tenancy was estimated in 1273 Amli at 600 bighas, was found on measurement to be 1,166 and has now been surveyed at 1,235 bighas. At the measurements in 1882 the incomplete extracts from the khatians, which have been printed, show that in Kourkhali the chakdars had 128 or more tenants, in Majuabera (part of Juktibasan) 17 or more [vide Exhibit XXI (1)], in Buraburi 38 or more [vide Exhibit XXI (4).], and in Juktibasan proper out of 169 bighas under cultivation 133 bighas were in the possession of tenants and 36 in the possession of the chakdan. At the present survey only 73 bighas are in the chakdar's own hands. His own witness (P.W. No. 1) says that the plaintiff has now 400 tenants and only 50 bighas in his own cultivation and 50 in the occupation of bhag chasis (metayer tenants), whose status as tenants he wishes to ignore. Of these 100 bighas much, it appears, came into the immediate possession of the chakdar by purchase at rent execution sales. The chakdar in this case is a Brahmin; it appears that Hara Chandra was a Pandit and in the kabuliyats (Exhibit III) he and his successors are described as talukdars. Of the 28 witnesses who have been examined by the defendant with special reference to this case, 16 trace their possession to the time of Narayan Maiti. Of the amalnamahs and dakhilas of Maiti's time, as we have already shown, four amalnamahs (Exhibit F) and one dakhila apply to this chak Exhibit G, the hukumnamah of 1276, was granted by Hara Chandra. Of the other dakhilas (the B series) many are of this chak, and some 27, going back to the year 1275 and granted to four tenants, are of the time of Hara Chandra, who died some time between Agrahayan and Bhadra 1278 Amli. Of the E series, conveyances by under-tenants of their holdings, as the, jotes of occupancy raiyats, six (E6 to E9, Ell and 12) are of lands in this chak. The. 25th Asar 1292 Amli earliest of these is dated 7th july 1885 16th Poush 1296 Amli and in one E9 of December 1888 the purchaser is Akhya Narain Das, one of the original chakdars in Nos. 59, 60 and 62. We should say, however, that we attach very little evidentiary value on the present question to the documents of the E series. On the evidence thus summarised, we have no doubt that in this case the lands were acquired for the purpose of collecting rents and of bringing them under cultivation by the establishment of tenants and that the plaintiffs are tenure holders.
51. We should perhaps add that neither in this case nor in the other cases does the chakdar's reservation for his own cultivation of some portion of the land acquired militate against our conclusion.
52. Appeal No. 94.--In this case the present plaintiff Sib Prosad Missir was the original chakdar. Of this chak, estimated in 1273 at 300, and measured by the ijaradars 482, the true area is 538 bighas. Of this area 46 1/2 are in the chahdar's own cultivation and 468 are in the hands of tenants. From the incomplete extracts from the papers of 1882 that have been printed, we find that in the portion of his chak known as Majuabera he had then as many as 36 or more tenants. Of the 13 defence witnesses (excluding No. 12) who speak specially of this chak, five trace their possession to Narayan Maiti and two produce amalnamahs of his time--Exhibits F(2) and F(9). Of Narayan Maiti's dakhilas three, excluding B46, are to tenants in this chak. Of the other dakhilas of the series, 43 are of this chak. They were granted to three different tenants and go back in one case to 1274 Amli, in another to 1288 and in the 3rd to 1292. Another tenant (D.W. No. 13), who does not produce dakhilas, speaks of forty years' possession. Sib Prosad Missir has been examined. He admits that after the fourth year, when jungle cutting had been finished, he kept only 25 to 40 bighas in his own possession and let out the remainder to tenants. He also is a Brahmin, describes himself as a lakherajdar, is connected by marriage with Bidya Bhusan and on the latter's death became (vide Exhibit III series) karpardaz for his widow. Exhibits K(1) to K(3) show that in rent suits he described himself as a 'talukdar.' Of the E series, 5 (E1, E10 and E15 to 17) relate to lands in this chak. The earliest is dated 2nd Magh 1304/January is dated January 1897, but in one, E14, the chakdar Sib Prosad is himself the purchaser.
53. On all this evidence there can be no question that the plaintiff Sib Prosad Missir is a tenure-holder.
54. Appeal No. 64.--Here the chak was estimated at 100, was measured 123 and has now been found to be 144 bighas, of which 121 bighas are in the occupation of tenants and the remainder lies uncultivated. Exhibit XVII (3) shows that at the survey of 1882, forty or more tenants were found on this land. One of the plaintiffs, Ashutosh, has been examined. He tries to make out, no doubt falsely, that of the tenants entered in the Record of Rights, some holding 30 to 32 bighas are his be namidars He is a Kayastha, and a lakhs rajdar and is the cousin of Dharanidhar (P.W. No. 2), son of the ijaradar Krishna Prosad. His Tahsildar (P.W. No. 4) tells us that he has fifty to sixty tenants in this Buraburi mauza and also owns five or six other mauzas. Raja Bar (P.W. No. 11) says he has been tenant in this chak for thirty-six or forty years. Of the defence witnesses four give evidence with special reference to this case. Three of these (D.Ws. Nos. 8, 26 and 55) say they are in possession from the time of Narayan Maiti and the 4th (D.W. No. 26) says that his holding is ancestral. All produce dakhilas, though none are of Narayan Maiti's time; they go back to 1295, 1281, 1298 and 1294. The evidence in this case also leads us, without hesitation, to the conclusion that the plaintiffs are tenure-holders.
55. Appeals Nos. 59, 60 and 62.--These three cases spring from one amalnamah covering an area estimated at 270 bighas but ascertained by measurement to be 470 bighas. The 67 bighas taken by the predecessor of the plaintiffs in Appeal No. 59 have now been found to be 77 bighas, of which 27 1/2 are in the chakdars' nij cultivation, and 59 1/2 in possession of tenants. Lakhi Kanta, predecessor of the plaintiffs in Appeal No. 62, obtained, it seems, 70 1/2 bighas and at the present measurement this has been ascertained to be 76 bighas, of which 59 are in the occupation of tenants and say 17 in the nij cultivation of the chakdar.
56. The plaintiffs in No. 60 (some of them being also plaintiffs in No. 62) are the purchasers of one-quarter of the share, 142 bighas, that fell to Indra Narayan Kar, one of the original amalnamah holders, and their area is now a little less, 34 bighas, held by the chakdars and by the tenants approximately half and half.
57. The 1882 measurement papers, in so far as they concern these three cases, have not been printed, but the judgments [Exhibits XIII (2), XIV(l) and XIV (2)] in Suit No 5 of 1867-1868, decided in the First Court on 3rd July 1867, show that even then the chakdars had on the land tenants of whom one paid rent at the rate of Rs. 2 per bigha. The witnesses who have been examined on the side of the plaintiffs with special reference to these three cases speak generally of the clearing of jungles, the erection of embankments, and the cultivation of the lands by the agency of hired labourers. One of the plaintiffs (P.W. No. 7) in No. 62 says that the lands shown in the Record of Rights as in the possession of bhag tenants are in his own possession but we are not prepared to accept this statement. Witness No. 23 says that same four portions of the lands covered by this same amalnamah have been entered in the Record of Rights as raiyati. Though extracts from the record have not been produced we may accept this as correct, but the fact is not of much assistance to the plaintiffs. The areas appear to be small.
58. Of the 10 defence, witnesses who speak of the lands covered by this amalnamah, i.e., of the three portions now in suit, eight speak of the settlements and possession from the time of Narayan Maiti, two of them producing amalnamahs [F(1) and F(6)] and one receipt (B49). One other witness (D.W. No. 1) speaks of possession for forty years. Three of the witnesses produce receipts (B series) going back in one case to 1273 and in another to 1299.
59. Of the original grantees the Acharjyas and the Kars are Brahmins, and brilti-holders, i.e., holders of lakheraj brahmattar lands. Akshoy Narayan Das is also a lakherajdar, (vide P.W. Nos. 2 and 3) and the only cultivator Brindabon Maiti took only 18 bighas out of the 470.
60. In 1904 by Exhibit A, some of the plaintiffs in No. 59 created a permanent jote right in favour of the witness Nabin Sashmal. Of the E series of conveyances, one dated 1st Sraban 1302 1895 relates to lands in Appeal No. 60. These two pieces of evidence, being of conduct subsequent to the severance between the original co-sharers, apply only in the appeals specified in the case of each and as we have said, we attach little importance to the E series.
61. On the whole evidence we are satisfied that in these three appeals also the tenancy created by the amalnamah of 1273 is a tenure.
62. Appeal No. 63--This relates to one Nasiram Naik's chak or half share in an amalnamah purporting to cover 100 bighas. At the measurement of the ijaradars the area in Nasiram's chak was found to be 105 bighas and has now been surveyed at 121 bighaa, of which about three bighas are uncultivated. 111 I bighas are in possession of tenants and 7 bighas are in the chakdars' own cultivation. The present plaintiffs are purchasers in March 1908 in execution of a mortgage decree against Umesh, the son of Nasiram. The chak is item No. 5 in sale-certificate, Exhibit VIII.
63. The khatians of 1882 have not been printed, but from the originals we find that in 1882 only 49 out of the 110 bighas were in the nij cultivation of the chakdars.
64. The plaintiff and two other witnesses (P.Ws. Nos. 18 and 19) say that Nasiram, who was a Teli, personally and by labourers cleared jungles, erected embankments, and for some time cultivated the nij jote. There are now 32 tenants on the chak. Of the defence witnesses four speak of this chak. Of these two attest their conveyances, Exhibits E2, 3 and 4. One (D.W. No. 6) proves that he and nine other tenants held all the lands of this chak under Narayan Maiti and this is corroborated by D.W. No. 3, who, it appears, was dispossessed by the chakdars in 1305 and recovered possession by suit (vide Exhibit D). Defence witness No. 15 speaks of his own possession from Maiti's time. Two of these witnesses produce dakhilas (B series) which go back in one case to 1276 and in another to 1282.
65. The three conveyances of the E series are dated 1306, 1310 and 1312.
66. In Exhibit J., a compromise in a suit dated 24th March 1909, the present plaintiffs recognise a certain set of tenants as 'jotedars' and admit that their predecessors had been in possession under his predecessors-in-interest.
67. In our opinion in this case also the evidence makes it clear that the tenancy is a tenure.
68. Appeal No. 61.--In this case the amalnamahs in favour of two persons covered nominally 25 bighas, but on measurement by the ijardars was found to comprise 126 bighas of which about 62 bighas were in the posssession of Narayan Manna, the predecessor of the present plaintiffs. The present survey gives just under 61 bighas, of which 35 bighas odd are in the nij cultivation of the chakdars.
69. The khatians of 1882 have not been printed.
70. Plaintiff Kamala Kanta Manna has been examined. He is the brother of Narayan, and says he sublet for the first time twelve years after bringing the lands under cultivation and has now seven tenants on 21 bighas. On the other hand, the witness Brojo Maiti (P.W. No. 22), who is Narayan's brother-in-law, says that four tenants were given each a bigha or two, 2/4 years after the land had been brought under cultivation. Of the defence witnesses five speak of this chak. All say they hold lands therein, the area ranging from 1 1/2 to 8 bighas. These date their possession from the time of Narayan Maiti, and one of them produces a dakhili of his time (B94). The other dakhilas (B series) produced date back to 1297, 1281 and 1298. In Exhibit C, dated 26th January 1880, a decree on compromise in a suit brought by the defence witness No. 2, Panchoo Jana, we find the chakdars restoring the plaintiff tenant to possession of 4 bighas 13 cottas 'in maurasi jote' right as before.'
71. Both Narayan Manna and Sonatan Saont are koibartas, that is, they are cultivators, both by class and occupation. Of the 126 bighas, Narayan's 62 were shared by himself and his brother Kamal.
72. This case is thus not free from difficulties. On the one hand we have no doubt that on portions of his chak, as on other chaks, there were tenants, though generally of small area, in the time of Narayan Maiti, and that these tenants assisted in the clearing of jungle and in the erection of at least the subsidiary embankments. We also find (Exhibit C) the plaintiffs in 1880 recognising one of these tenants as an occupancy raiyat, that is, the tenant of a tenure-holder.
73. On the other hand, we find that the plaintiffs and the original amalnamah holders are men of the cultivating class and that of the holding two-thirds even now is in their khas cultivation.
74. On the whole, we think that in this case the Subordinate Judge was right in finding that the plaintiffs were raiyats.
75. We will now deal very briefly with the questions of law that have been urged. In the first place it has been contended, on behalf of the appellants, that the undertenants of the chakdars are necessary parties. No doubt the status of the under-tenants is involved in the status of the ch kd rs and for that reason they may be considered proper parties, but we are unable to hold that they are essentially necessary parties.
76. On behalf of the respondents, it is next contended that their status mast be determined by reference to the law as it stood at the time when the tenancy was created, and that under the law prior to the enactment of the Bengal Tenancy Act, 1885, tenure-holders were persons who from the start were placed in the position of rent receivers. In other words, they say that in the Bengal Tenancy Act, Section 5(1), the words 'or bringing it (i.e., the land) under cultivation by establishing tenants on. it' introduced a change in the law. It is for this reason that they have sought zealously to show that they found their chaks vacant and that there were no cultivating tenants thereon on or from the time of Narayan Maiti's ijaras of 1271 and 1272. We have examined that evidence and have found that in fact in every case there were cultivating tenants in possession before the creation of the interests of the chakdars. But we are also unable to accede to their contention in law. It is based upon the well-known judgment of Field, J., in Durga Prosonno Ghose v. Kali Das Dutt 9 C.L.R. 419, but we are not of opinion that that judgment embodies a complete exposition of the law as it then stood. On the contrary, we are of opinion that the definition contained in Section 5 (1) of the Bengal Tenancy Act merely formulates the pre-existing law and we may refer in this connection to the cases reported as Ram Mungul Ghose v. Lukhee Narain Shaha 1 W.R. 71, Midnapur Zemindary Co. v. Sham Lal Mitra 6 Ind. Cas. 362 ; 15 C.W.N. 218, and Promoda Nath Roy v. Asir-ud-din Mandal 11 Ind. Cas. 262 ; 15 C.W.N. 896. We are further of opinion that the law enunciated in Section 5 of the Bengal Tenancy Act, except in so far as special or local enactments are saved by Section 195, is applicable to all tenancies in respect of agricultural lands, whether created before or after the passing of the Act.
77. In any case, and whichever of the above views may be the true view of the law, we have found and find on the facts in each case except in Appeal No. 61 that, in that view, the plaintiffs are tenure-holders.
78. In coming to our conclusions we have not thought it necessary to invoke the aid of the presumptions created by Section 103B(3) and Section 5(5) of the Act, but we should observe that we are not unmindful of them. In Appeal No. 61 we overrule the presumptions under Section 103B. In the other cases it goes to support our findings. Similarly the presumption under Section 5 (5) fortifies our conclusions in Appeals Nos. 473, 94, 64 and 63.
79. In the result, Appeal No. 61 is dismissed with costs and the remaining seven appeals are decreed and the suits out of which they arise dismissed with costs in both Courts.
80. In the cross-appeal in Appeal No. 60 as to the rate of rent assessed on the holding there is no substance and that is also dismissed. The cross appeals in the other seven cases necessarily fail.
81. We assess hearing fees as follows: In each of the Appeals Nos. 61 and 63, Rs. 150, in Appeal No. 62, Rs. 125, and in each of the Appeals Nos. 59, 60 and 64, Rs.100.