1. These two appeals have been preferred by the plaintiffs and arise out of two suits filed on their behalf' under Section 104(h) of the Bengal Tenancy Act to correct an entry in the Record of Rights wherein the plaintiffs have been recorded as tenure-holders. The plaintiffs-claim their status to be that of raiyats. The plaintiffs ask for the further relief that it be declared that the entry with regard to rent was wrong. In Appeal No. 1765 the lands are covered by two leases, Exs. 1 and 2 and the area in each lease is much in excess of 100 bighas. In appeal No. 2018 of 1924 the area is also over 100 bighas. In each of these appeals the plaintiffs have consequently to rebut the statutory presumption arising under Section 5 of the Bengal Tenancy Act. They have also to rebut a further presumption arising out of the entry in the Record of Rights. That presumption is sought to be rebutted by the description of the plaintiffs in the kabuliyat in the first case as a raiyat and by the use of the word 'cultivator' therein. As the first two kabuliyats concern land which form the subject-matter of Appeal No. 1765 and are printed in official forms, the lower Courts were right in holding that the kabuliyats do not rebut the presumption under Section 5 of the Act and in holding that the real and the true test in this case is to see for what purpose the tenancy was created, and where the lease is equivocal the attendant circumstances have to be looked to judge of the purpose for which the tenancy was created. Here we find that Palwan who was the original tenant was a bhadralogne Mussalman carrying on business elsewhere. The question whether he is a raiyat or a tenure-holder ultimately depends on a question of fact.
2. The Judicial Committee have in two recent cases, namely, in Debendra Nath Das v. Bibudhendra Mansingh  45 Cal. 805 and in Rajani Kanta Ghose v. Secretary of State for India  46 Cal. 90, pointed out that the question whether the tenants are raiyats ultimately depends on the question of fact and we must look to the attendant circumstances. The whole evidence which was placed before the first Court leads to the conclusion which has been arrived at by both the Courts below that Palwan employed the agency of tenants to cultivate the disputed land. He was in fact a middleman and was a very useful one. He reclaimed the char in order to make money by letting out the lands to cultivators. Nor can very great stress be laid on the words in the kabuliyat of 1882 of raiyat and cultivator as pointed out by the Judicial Committee in Gokul Mandar v. Pudmanund Singh  29 Cal. 707:
Their Lordships did not attach any importance to the mere form of the kabuliyat or the use in it of the word 'cultivator.'
3. It has been suggested in this case that there are soma rant receipts which show that the status of the tenant is that of raiyat. With regard to these receipts the following remarks of the Judicial Committee in the case just referred to apply Gokul Mandar v. Pudmanund Singh  29 Cal. 707:
Nor does the receipt of rent in which the appellant is described as a raiyat carry the matter any further.
4. We think that so far as this appeal is concerned the double presumption which arises in favour of the Secretary of State has not been rebutted by the proof of the two kabuliyats and by the use of the expressions 'raiyats and cultivators' therein.
5. In Appeal No. 2018 a special feature which distinguishes it from the other case and which has been pointed out to us is that the printed forms are not used and that the words in the printed forms 'not possessed of the rights of occupancy are struck out and instead of them the words 'possessed of the rights of occupancy' are to be found. It is true that deliberate alteration would have considerable effect in making the plaintiffs raiyats but for two circumstances, viz., 1st, the lands are said to be accretions and re-formations in suit of lands in respect of which the plaintiffs have accepted the position of tenure-holders from 1902 till the date of the institution of the suit. In 1902 a previous Record of Rights was prepared in which the plaintiffs were described as tenure-holders. That record stood unchallenged. It is argued on behalf of the appellants that it is not necessary for them to challenge the entry as to their status being that of tenure-holders as there was no alteration in the rental and suit under Section 104-H could only be brought if they were aggrieved by any entry of rent. Materials have not been placed before us to show that there was no change in the rental in 1902 and we cannot assume the contrary, nor is it admitted on behalf of the Secretary of State that the rent remained unchanged. Now the plaintiffs having accepted the position of tenure-holders with regard to the present tenure they cannot rely on the kabuliyats executed in 1911 in which certain officers of Government gave a lease or allowed the description of the status in connexion with the accretions to be different from the description with regard to the parent tenure. It was a misapprehension of the legal rights of Government by its officers and could anything done under such, misapprehension not affect the title of Government in this land nor can it make the law one way or the other. Though the kabuliyats created larger rights in favour of the appellants nothing done by the officers of Government could create any right in the accreted land not (belonging to them. If the appellants were tenure-holders with regard to the parent tenure, they have the same status I with regard to accretions. This position is supported by the decision of the Judicial Committee in the case reported in Secretary of State v. Srinivasa Chariar A.I.R. 1921 P.C. 1.
6. With regard to the argument that the Settlement Officer should nothave fixed the rent on the basis of assets...but on the basis of hasila rent we hold that the kabuliyats in which this condition was incorporated spent their force long before the institution of the present suit and the tenants were really holding over. In the circumstances it was open to the Settlement Officer to determine fair rent after determining the true status of the tenants, irrespective of the stipulation in the time-expired kabuliyats.
7. As these grounds fail, both the appeals must be dismissed with costs.
8. I agree.