Field and Beverley, JJ.
1. It is contended that the defendants are entitled to a right of occupancy in the yellow-coloured land as to which this appeal has been preferred, and also in the eleven days coloured white and lying to the west of the land coloured yellow. The Subordinate Judge has decided against the defendants in respect of this occupancy right upon the authority of two cases, one of which will be found in 25 W.R. 117, and the other in I.L.R. 4 Cal. 957. We think that the present case is distinguishable from both these cases. The report of the first case Cannan v. Kylas Chunder Roy Chowdhry is very brief. The judgment of Macpherson, J., is as follows: 'As regards the first ground of appeal, we think that there is nothing in it. It may be, or it may not be, that Mackilligan had acquired a right of occupancy in this land. But it is clear that the Agra Bank, which has been in possession only some six or seven years, cannot, merely as a transferee of Mackilligan's interest and relying on his previous possession, have any right of occupancy, unless the Bank's landlord has admitted that it has such a right.' In this passage the claim of the Agra Bank to a right of occupancy is negatived on two grounds, first, that the Bank had been in possession only six or seven years; and, secondly, that being the 'transferee of Mackilligan's interest, it was not entitled to any right of occupancy which he might have had. The learned Judge then proceeds: 'We are asked to declare that the Agra Bank has a right of occupancy as standing in the place of a certain indigo concern, which held this land for more than twelve years. But an 'indigo concern 'or' firm' has no corporate or legal existence which we can recognise in a suit like this. So far as the question of a right of occupancy is concerned, all that we can look at is occupancy by particular individuals; and as far as such occupation of this land goes, the present appeal fails.' The report does not show the particular facts of the case, with reference to which these observations of the learned Judge were made. We do not know who were the persons who constituted the indigo concern or firm, or whether their names were upon the record, or whether there was any evidence to show that these persons had held for twelve years after they had obtained possession. The second case is the case of Rai Komul Dossee v. Laidley. It is clear from the pottah given at page 958 that this was a case of an ijara lease, and that it was not like the present case, which is a case of a jotedari lease, that is, a cultivating lease. This being so, any observations that were made in the judgment in that case with respect to the rights of a ryot were obiter dicta. Referring to the case of Cannan v. Kylash Chunder Roy Chowdhry, Jackson, J. said: 'In those observations we concur, and it would be impossible, we think, to hold that a firm or partnership could take a grant of land, and by arrangement amongst themselves, continuing for a series of years by changes in the partnership, hand over the land from one person to another under the guise of a right of occupancy.' These remarks are, we doubt not, quite correct as applied to the facts of that particular case; but at the same time we must bear in mind that as that lease was an ijara lease (a lease of an interest intermediate between the zamindar and the cultivator), they were obiter dicta and are not binding as a precedent. The learned Judge proceeds: 'What the firm of Robert Watson & Co. took from the zamindar in this case was not a ryot's tenure for the purpose of ordinary agricultural use. It was a tract of land amounting to an estate to be worked by them by means of capital for the purpose of carrying out a particular speculation.' These latter observations have, in our opinion, no application to the facts of the case now before us, and we think, therefore, that neither of the two precedents quoted is on all fours with the case which we have to decide. The lease in the present case runs as follows: (Here followed the lease as set out above). We think this lease is on the face of it a cultivating lease, and that this question is not affected by the fact that the cultivation was to be that of indigo, or that the lessees happened to be manufacturers of the indigo when cultivated. The test of a ryotee lease adopted in many decisions of this Court, and now accepted by the Legislature, is whether the lease was originally granted for the purpose of cultivation, and if it was granted for that purpose it is none the less a ryotee lease, though the lessee may happen subsequently to sublet. We think then that this lease was a cultivating lease-a lease granted to the lessees for the purpose of cultivating indigo; and so long as cultivation is contemplated, we think it is immaterial whether the cultivation intended is that of rice, jute, indigo or other crop. But then it is said that this was a lease granted to the firm of Robert Watson & Co., and under such a lease particular individuals cannot acquire a right of occupancy. If this lease had been drawn up by skilled legal agency, instead of Robert Watson & Co., there would have been inserted the names of the persons who then were members of that partnership. But inasmuch as the names of these persons could be ascertained on the principle id certumest quod certwm reddi potest, we think that this must be taken to be a lease to the individuals who were at that' time members of the firm of Robert Watson & Co. If the lessees happened to be Hindus or Mahomedans, we think it would have been impossible to contend that occupation by them for more than twelve years under this lease granted for the purpose of cultivation would not have conferred upon them a right of occupancy, there being no clause in the lease to bar the acquisition of that right; and we think that the same result will follow in the case of lessees who happen to be Englishmen engaged in the manufacture of indigo, seeing that they cultivated the indigo in order to manufacture it. If it had been pleaded that the original grantees under the lease were all of them dead, that they had died either before the expiry of twelve years from the commencement of their possession under the lease, or after a right of occupancy had been acquired by them by twelve years occupation; and if it were further contended either that the period of less than twelve years during which the original grantees were in possession could not be added, to the other subsequent period during which persons subsequently admitted as members of the firm were in possession, in order to make up the statutory period of twelve years; or, again, that the right of occupancy acquired by the original grantees by twelve years possession could not be transmitted, or transferred, to persons subsequently admitted as members of the firm--then, in either of these cases, a question would have been raised which must have been tried and determined; and it might well have been argued that in order to make up the statutory period necessary to confer a right of occupancy, occupation of less than twelve years by the original grantees 'could not be added to any period of occupation by persons subsequently admitted as members of the firm; or, again, that a right of occupancy acquired by the original grantees could not be transmitted or transferred to persons subsequently admitted as members of the firm. But no such plea has been made, and no such question has been raised; and we think that we ought not to assume, in the absence of pleading and evidence, that the whole of the grantees of 1267 are dead; that they died either before the completion of the twelve years occupation, or that, having died after acquiring a right of occupancy by twelve years occupation, such right could not, according to the custom of the locality, be transmitted or transferred to persons subsequently admitted as members of the firm. In our view of the case we think that the grantees under these pottahs being pottahs for cultivation, pottah of the nature of ryoti pottahs, could have acquired a right of occupancy. There is nothing to show and no allegation that the original grantees who entered upon possession are dead, and if they have since held or cultivated (and this cultivation may have been by their servants, or through sub-tenants, bhag-jotedars and the like) they have acquired a right of occupancy. The facts of the two cases quoted to us have no similarity to the facts of the case with which we have to deal, and we think that the law there laid down does not apply.
2. We, therefore, come to the conclusion that the defendants, having been for more than twelve years in the occupation of this land as cultivators, have acquired a right of occupancy therein. In this view we must reverse so much of the decree of the lower Court as declares the defendants not entitled to a right of occupancy in the lands which have been declared to form a portion of the plaintiff's estate, and we must further set aside so much of the decree of the Court below as awards to the plaintiff's mesne profits in respect of this land.