1. The questions which arise in this second appeal are firstly, whether under the terms of a kabuliat executed by the defendant No. 1, Bhairab Chandra Sarcar, on the 7th April 1892, he is a non-occupancy riayat or an ijaradar. A second question was raised by the appellant that even if he were a non-occupancy raiyat, he could not be regarded as a person holding over, as he was never recognised as a tenant by the plaintiff. The plaintiff was the purchaser of the rights of one Kunja Behari Chowduri with whom the Government settled the mahals in which the disputed land is situated in the year 1896. His interest was sold for arrears of revenue, or, as it really was khas mahal rent, and was purchased by Joy Narain Chowduri in 1906, who in his turn sold his interest to the plaintiff in April 1908.
2. We will deal with the second point first, because it appears to us perfectly clear that if the defendant No. 1 was a cultivating tenant on the land under a nine years' lease, he must be a non-occupancy raiyat and nothing else and he, therefore, could not be ejected without notice and this is what the Subordinate Judge in the Court below has found. But the main contention of the appellant is that on a true construction of this lease, the defendant No. 1 was an ijaradar and not a raiyat at all; and although this is contrary to the view taken by both the lower Courts, we think that it is a sound contention and must be given effect to, and in the result, as we shall see, it is far more to the advantage of the defendant respondent that we should take this view.
3. The lease purports to be on the face of it a malguzari Settlement It purports to give the lessee rights superior to those of jotedars, raiyats, korfar raiyats and even village headmen. It obstensibly was given for the purpose of collecting rents from tenants on the land. It imposed an obligation upon the defendant to furnish village papers to the Collector and it debars the defendant from selling or mortgaging or sub letting in patni the lands devised. Then again the land is described as an estate throughout and it seems to bear a separate number as an estate, and the parcels of land on the boundaries are all described as estates Nos. so and so. In opposition to this, the learned Vakil for the respondent points out what the lower Courts greatly relied upon, that the facts that there were no raiyats or korfar raiyats upon the land at the time goes to show that the terms of the lease are inconsistent with the facts and it could not have been the intention of the parties to give an ijara lease, and that it must be held, as was held in the case of Gokul Mandar v. Pudmanand Singh 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.) that this was one of these instances of what their Lordships of the Judicial Committee described as the usual mistake of using a printed form for purposes to which it was not adopted. It is further contended that the expression 'I shall collect rent from jotedars, tenants, raiyats and korfar raiyats as the case may be,' shows that this is an alternative form which may be used for various purposes and that no body but a raiyat can collect rent from a korfar raiyat. On the other hand, it might equally well be argued that no body but an ijaradar can collect rent from a jotedar, tenant or raiyat; and the fact that there were no raiyats on the land at the time of the devise is fully explained by the fact that this large tract of upwards of 60 bighas was at the time waste land and jungle and that it was intended apparently by the parties that it should be cleared by means of the ijaradar and his tenants. It cannot be said that because a man does not as a fact have any tenant under him that he must be a raiyat whatever the nature of his holding and we do not think that the observations of Mr. Justice Field in the two cases of Durga Prosunno Ghose v. Kalidas Dutt 9 C.L.R. 449 and that of Laidley v. Gour Gobind Sarkar 11 C. 501 could have been intended to go to this extent; nor is it contended by the learned Vakil for the respondent that he could have intended to lay down any such very general proposition; and at page 505 of the last mentioned case, he clearly distinguishes the case of Rai Komul Dossee v. Laidley 4 C. 957 which was a case of a lease purporting on the face of it to be an ijara lease, whereas the lease to which he applied his dicta in the case we have cited purported upon the face of it to be a jotedari lease, and he had only anticipated the rule laid down by the Privy Council in Gokul Mandar's case 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.), when he says that the facts existing at the inception of the tenancy are to be taken into consideration when it is necessary to decide whether the lease has been originally granted for the purpose of cultivation, and if it has been so granted, it is nonetheless a raiyati lease, though the lessee may happen subsequently to sub-let and it seems to us that it is nonetheless an ijara lease if the ijaradar does not happen subsequently to sublet, for every landlord is entitled to cultivate any land which he holds, on which there are no tenants, as his nij jote. Now what their Lordships of the Privy Council say in Gokulmandar's case 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.) does not appear to us to apply to the facts of this case. The kabuliat executed by the appellant in that case was on a printed form in which it was described as form of kabuliat for those cultivators who have not been recognised as having occupancy right', but, on the other hand, the holding was described in a note as 'taluk' and it was a tract of land measuring 1,174 bighas. Upon this, a presumption arose under the Bengal Tenancy Act that it was a tenure and not an occupancy-holding, and their Lordships agreed with the decision of the High Court that great importance was not to be attached to the mere form of the kabuliat in that case or to the use in it either of the word 'cultivator' or of the word 'taluk', that is to say, there were two expressions in' that lease which were wholly inconsistent with each other and cancelled each other out, and it was, therefore, incumbent upon the Court to decide whether the lease was purely for cultivation or one devising a tenure Their Lordships of the Judicial Committee decided upon the facts and upon the presumption arising by Section 5(5) of the Bengal Tenancy Act that it was a tenure and not a raiyati holding. Obviously, therefore the finding in that case does not in any way affect the present case.
4. We have to decide whether there is any such inconsistency or ambiguity on the face of the document as requires an investigation into the intention of the parties. We have shown that the facts which the lower Courts are perfectly right to go into do not in themselves establish any ambiguity and that the whole intention of the document is so clear, read as a whole, that we are unable to have the slightest doubt that it was the intention of the parties to create an ijara lease. That being so, the findings of both the lower Courts that the defendant was a raiyat must be set aside.
5. But then comes what is really the most important question in this case, namely can the defendant No. 1, being an ijaradar under this document be turned out by the Present plaintiff? We are of opinion that he cannot. The plaintiff has admittedly stepped into the shoes of the Collector. The contract which we have just interpreted is not a contract between the defendant and a third person which he could not plead as against the plaintiff. It is a contract by which the plaintiff is bound just as the Collector was bound and it depends upon the construction put upon paragraph 7 of this contract whether the defendant lost his rights altogether on the expiry of the first term of his Settlement, or whether the plaintiff had not the duty upon the expiry of that term of offering to him a fresh settlement. It appears to us that the words used, whether we take them as in the English translation, in the paper book or whether we take the Bengali words as laid before us by the learned Vakil for the appellant, the meaning must be that on the expiry of the term of the lease, the defendant had the option of taking Settlement on a revised jama, but failing his acceptance of the revised jama, his right and interest under the lease should cease to exist and the Collector should be at liberty to make a fresh Settlement with others. The words are, 'lowa' 'nalowi', and it is argued that that cannot mean acceptance' and must impose a duty on the defendant of asking for a fresh Settlement. As far as the first clause is concerned, I shall have the option of accepting', it does not make the slightest difference. Whether you say 'Accepting' or taking', you can neither accept nor take any thing, which is not offered to you unless you have got it already and if you got it already as the defendant had in this case, and the owner does not wish to take it away from you, it is obviously not your duty to go and return it to him when you have already obtained the option of keeping it. You can only be called upon to return a thing which you have no option of returning. But as regards the second word 'acceptance', there might be some argument. If the word is failing my taking my right and interest shall cease, it might be argued that a duty was imposed upon the defendant to go and ask for settlement. But the words are not only on accepting or taking Settlement but on accepting or taking Settlement 'on a revised jama' and the only way the defendant can possibly take a fresh settlement on revised jama would be by the fact that the landlord had offered him a revised jama or imposed upon him a revised jama. You cannot accept a thing or take a thing which is not offered to you, if it is a different thing from the thing which is already in your possession. It, therefore, seems to us that the clear intention of this clause was that if the Collector did not desire to disturb the tenant at the end of his Settlement, that he would go on holding on the same terms, and that as the plaintiff who is in the shoes of the Collector has never asked the defendant for any revised jama, he must be held to have acquiesced in his holding on the same terms. But he says 'my conduct shows that I did not acquiesce.' The Subordinate Judge found on the facts that it is clear from the evidence that the defendant throughout expressed his intention of retaining possession of the land. He remitted the rents regularly year after year but the landlord refused to accept them, and it is argued on behalf of the appellant that this refusal to accept the former rent amounted to a termination of the contract and to a demand for a revised jama. We do not think that it can amount to anything of the kind. As long as the plaintiff did not ask for a different rent, the defendant was not only entitled to, but he was bound to, go on paying as he did the same rent; and we are, therefore, of opinion that the plaintiff cannot succeed in this suit and that the suit brought by him in the lower Courts must be dismissed, but for other grounds than those stated in the judgment of the lower Court, for the status of the plaintiff in this case is a most important point and it would not, in our opinion, be conducive to the ends of justice for us merely to dismiss the appeal without a clear finding as to what the plaintiff's status is.
6. The result is the same, however, namely, that the appeal is dismissed with costs.