1. These appeals arise but of suits for declaration of the plaintiffs' tenancy right to the lands mentioned in the plaints in these suits, and for settlement of fair rents in respect of the lands under the following circumstances.
2. The plaintiffs' predecessors in title held, under a temporary settlement from Government, a certain Dearah Mahal, which was a contiguous accretion to their permanently settled estate, and during the time that it was so held, the plaintiffs' predecessor-in-title purchased these tenancies in execution of decrees for arrears of rent. One of these tenancies consisted of about 700 bighas of lard, and the finding is that it was a tenure. The other two tenures were raiyati holdings.
2. Now, in the proceedings under Chapter X of the Bengal Tenacy Act, the Revenue Officer ignored the existence of these tenancies and treated the persons in possession of the land as raiyats and settled the rent on the basis of the rent payable by them to the proprietor. Thereupon these suits were instituted against the Secretary of State. The last paragraph of Section 104H, Sub-section (3), has no application to this case, as it is conceded that the Government let out the lands to the plaintiffs as ijaradars.
3. The Courts below have hell that the first tenancy was a tenure, and the right of the plaintiffs as tenure holders did not merge in their (right as proprietor. They, however, were of opinion that the prayer (gha) in the plaint, namely, as to the settlement of the amount of rent, could not be granted in the present case as it was beyond the jurisdiction of the Court. We are of opinion that the Courts below are wrong in this view.
4. Section 104H, Sub-section (3), lays down that a suit under the section may be instituted on the grounds mentioned therein, namely, among others, (d) that land has been wrongly recorded as part of a particular estate or tenancy, or wrongly omitted from the lands of an estate or tenancy; and (e) that the tenant belongs to a class different from that which he is shown in the Record of Rights as belonging. We think that the plaintiffs were entitled to maintain a suit on the ground (d) or (e). The rent payable by the plaintiffs as tenure-holders was not settled, the settlement of the rent having proceeded, as already stated, on the basis of the rent payable by the raiyats to the proprietors. The Court below had power under Sub-section (4) of the section to settle a fair rent, We think that having found that the tenure did not merge and was a subsisting one, the Courts below should have settled a fair rent in respect of that tenure. This is the subject-matter of Appeal No. 1497 of 1919.
5. The other two appeals Nos. 1531 and 1532 of 1919 relate to the two raiyati holdings which had been purchased by the plaintiffs' predecessor. Under Section 22, Clause (1) of the Bengal Tenancy Act, as it stands after the amendment in 1903, the proprietor has no right to hold the land as a tenant and can hold it as proprietor. But the acquisition of these raiyati holdings took place in 1901 and 1903 respectively. Under Section 22 as it then stood, only the occupancy right ceased to exist, and it had been held that the purchase of the raiyat's interest by the landlord did not extinguish the holding but divested it of the right of occupancy, if any attached to it see Miajan v. Minnat Ali 24 C. 21 : 12 Ind. Dec. (N.S.) 1015, following the decision in the case of Jawadul Huq v. Ram Das Saha 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761, which, however, related to the case of a co-sharer landlord.
6. In the present case, it is stated in the plaint that the Settlement Authorities in the course of the previous settlement recognised the existence of the raiyati jotes. This statement made in the plaint has not been controverted in the two written statements of the defendants. That being so, we do not see any reason see the Settlement Officer in the present proceedings should not recognise the existence of those holdings and settle the rent payable by the plaintiffs as holders of those jotes.
7. We think there should be a declaration in favour of the plaintiffs to the effect that they have the right of a tenure-holder in the jote which is the subject-matter of Appeal No. 1497 of 1919, and that they have a raiyati right in the jotes in the other two Appeals Nos. 1531 and 1532 of 1919. The cases must go bask to the Court of first instance for settlement of the rent of the tenure in the first case and of the raiyati holdings in the other two cases.
8. Costs to abide the result.
9. It is to be noted that the decision in these three cases will not affect any persons not parties to the suits.