1. These consolidated appeals raise two points which are common to all of them. The first is that the respondents are only some of the co-sharer landlords and are, therefore, not competent to maintain suits under Section 105, Bengal Tenancy Act; and the second point urged is that it should have been held that the rents of the appellants are fixed. The first question is of some importance and is one of first impression.
2. The facts are that the appellants are tenants of chars Katra and Hazari. For the purpose of determination of the first question it is not necessary to go to the early history of the estate. Suffice it to say that it was taken possession of by the Collector under Regulation V of 1812 under the order of the District Judge. I was released in 1858 on condition that the proprietors of the estate, who had quarelled amongst themselves, should enter into an agreement, that the management of the estate should be carried on through Malguzars under Regulation VII of 1822. On the estate being released the Collector resumed possession under arrangement with the whole body of proprietors and let out the estate from time to time to Sadar Malguzars under Regulation VII of 1822, as extended by Regulation IX of 1828. The present proceeding was started by the present Sadar Malguzars appointed by the Collector under the Regulation. The question, therefore, is whether those Sadar Malguzars are persons who may be called the entire body of the appellants. The position of the Sadar landlords or who represent the landlords of Malguzar is to be found in Section 10 (8) of Regulation VII of 1822. That section empowers the Sadar Malguzars to manage the property, collect rents and pay the Government revenue. It further lays down that if any of the co-proprietors is in possession of any land within the estate he will hold it as a subordinate proprietor subject to the payment of rent to the Sadar Malguzar, who is vested with exclusive powers over the tenants in the matter of collection of rent &c;, &c.; The effect of the appointment of Sadar Malguzar is, therefore, to suspend or take away for the time being the proprietary right of the proprietors of the estate. Whether a Sadar Malguzar is a person who may be called 'landlord' within the moaning of Section 3 (4), Bengal Tenancy Act is to be determined with reference to the definition of the word 'landlord' in that section. 'Landlord' is defined as 'a person immediately under whom a tenant holds and includes the Government.' Proprietor has also been defined in that section as 'a person owning an estate or part of an estate.' Beading the two definitions together, it would appear that a distinction was attempted to be made between a 'proprietor' having higher proprietary interest and a 'landlord' under whom the tenant holds, who may have an intermediate interest between the proprietor and the tenant. But a proprietor may be a landlord if he has direct relations with the tenants. In the present case it is argued that the tenants must be taken to be holding under the entire body of proprietors, though rent is to be realized only by the Sadar Malguzar. On a reference to the Regulations and the general scheme of the law on this point, it would appear that a Malguzar is more than a mere Collector of rent. In him is vested the management of the estate. Any co-parcener who. is in possession of the land is to be considered subordinate to the Malguzar. He is entrusted with powers over the tenants in respect of the collection of rent. The powers apparently include entering into settlements and all acts necessary for the management of the property. We have given our best consideration to this point and the conclusion which we have come to is that the Sadar Malguzars constitute the entire body of landlords within the meaning of Section 188, Bengal Tenancy Act. For the time being the tenants must be held to be holding under the Sadar Malguzars. The right of the other proprietors under the law remains in abeyance so long as the property is managed by the Malguzars under the Regulation.
3. There is another point of view from which this question can be looked at. As we have observed the Collector took over charge of this estate on the proprietor's agreeing that the management should be carried on through the Malguzars under Regulation VII of 1822. In pursuance of that agreement Malguzars have been appointed from time to time. They may, therefore, be considered as agents of the -proprietors and as such they are entitled to maintain the present suits under Section 105, Bengal Tenancy Act. Section 188 requires that the entire body of landlords should join in the proceeding or that they should act through an agent. In this connection reference was made to the case of Sati Prosad Gurga v. Ratha Nath Maity (1913) 16 C.L.J. 427, in which there is some expression of opinion that the word 'agent' as used in Section 188 means one person and not more than one person. That was a case in which two brothers of a joint Mitakshara family had brought a suit for assessment of rent under Section 52, B.T.A. Their Lordships held that all the members of the joint family must join under Section 188, B.T.A. and that two of them could not be considered to be agents of the entire body of landlords. Probably it was enough for the decision of that case to hold that the plaintiffs were not the entire body of landlords nor were they the agents of their co-parceners. The learned Judge proceeded further to observe as follows: 'It is clear, therefore, that the Legislature has expressly provided for the performance of an act, not only by the entire body of the joint landlords but also by their representatives. But the Legislature contemplated that where such representative is allowed to act, be must be a single individual; in other words, the act must be done by a single individual; in other words, act must be done by a single agent authorised to act on behalf of the entire body of landlords.' We must respectfully dissent from the view above expressed. Under Section 13, Clause (2) of the General Clauses Act, 1897 there is no reason why the words 'agent' should not include agents. We have been unable to discover any special provision in the Bengal Tenancy Act or any other law which would restrict the meaning of the word 'agent' to a single individual. I am, therefore, of opinion that the requirements of Section 188, Bengal Tenancy Act, have been satisfied in this case, the plaintiffs being regarded as the entire body of landlords or as agents of the entire body of landlords.
4. The next point is set at rest by the findings of fact arrived at by the learned Judge. It is argued that the tenants are in occupation of this land at any rate from 1808. The lands had diluviated before the Permanent Settlement and had reappeared some time about 1808 when they were settled with tenants. It is contended that since it has been found that tenants are in possession since 1808 it ought to be presumed that they were in possession from before the Permanent Settlement when the lands were under water. We do not; think that we are entitled to make any such presumption. Further the lower Appellate Court has found as a fact that the entire char was unoccupied in 1808. Evidently the tenants did not come into possession of any portion of this char until sometime afterwards and, therefore, no tenancy could have been in existence until then. The presumption that the tenancies bad been in existence from the time of the Permanent Settlement in 1793 is thus clearly rebutted. The finding comes to this that the tenants come into occupation of the land some time after 1808 which negatives the supposition that they were in possession from before the Permanent Settlement. The argument that is based upon it that the tenants, having proved uniform payment of rent for more than 20 years shall be presumed to have permanent Mukarari interest from the time of the Permanent Settlement consequently fails.
5. A further question is raised in S.A. Nos. 191 to 195 that the fact that there was a stipulation in the Kabuliyat that rent for any additional area to be found in future in possession of the tenants should be paid at a certain rate would make the rate permanent; and in support of this reliance has been placed on the case of Ram Dayal Giri v. Midnapore Zemindary Coy. (1910) 15 C.W.N. 263. The learned Judge has considered this matter and we think that he has come to a correct conclusion. These have been found to be Raiyati holdings and the Kabuliyats merely mention the fact that if any increased area is found in possession of the tenants rent would be charged at a certain rate per kani. It is not stated for what period the rate should continue. From this fact it cannot be presumed as a matter of law that it is intended to create Mukarari holdings. Surja Prosad Sukul v. Midnapore Zemindary Company, Ltd. (1922) 38 C.L.J. 369, Joges Chandra Roy v. Makbul Ali (1920) 23 C.W.N. 945 and Upendralal Gupta v. Joges Chandra Ray (1917) 22 C.W.N. 275. In all those cases it has been held that the mere fact that a certain rate is mentioned in respect of excess land to be found in possession of the tenants does not raise the presumption as to the Mukarari nature of the holdings. In the case of Ramdayal Giri v. Midnapore Zemindary Coy. (1910) 15 C.W.N. 263, which was decided by one of the learned judges who was a party to the decision in the case of Makbul Ali v. Jogesh Chandra Ray (1920) 23 C.W.N. 945, there were several factors which led the learned Judges to draw the inference of permanency as to the rate of rent. They observe 'It is true there are in the leases no words which by themselves would bar an enhancement such as are used in formal leases in other parts of the country.' But there is 'the conduct of the parties for more than 60 years showing that notwithstanding one transfer and several successions the same rate of 5 as. 4 pies has been maintained; there is the admitted object of the lease in respect of a large fraction at least of the lands to extend cultivation over jungle lands: there is the progressive nature of the rental in respect of the excess lands.' In these circumstances the learned Judges held that the presumption of permanency of rent may be deduced. These circumstances do not exist in the present cases.
6. The result is that all these appeals are dismissed with costs, We assess the hearing fee at seven gold mohurs for all these appeals.