1. The whole controversy in this appeal turns on the question of the status of the defendants who are the appellants and who claim to be occupancy raiyats as against the contention of the plaintiffs respondents which asscribe to them the status of non-permanent tenure holders holding over on the expiry of their lease. The defendants have to start with a double presumption against them. They have been recorded in the record of rights, finally published in 1913, as possessors of Fazal Jote Joynal Abedin, tenure holders-non-permanent, enhancible: the subordinate interests are recorded as Chukani; the total area of the lands let out to tenants is stated to be 539 acres, and the total area in direct possession as 11.96 acres of which about 5 acres consist of low lands and bunds and the rest are in the possession of the public as Halots. And the total area of the tenancy is 550.96 acres. The question to be considered is: 'Has the presumption been rebutted?' The area consists mostly of Chur lands in Mouzah Gaibandha in the District of Mymensingh which are subject to fluvial action of the river Brahmaputra. The last lease in favour of the defendant's predecessor, one Joynal Abedin, was dated 1313 (1907). It was a dowl settlement. A prior lease, also a dowl, dated 1282(1875) is also in evidence. Each of these dowls were for seven years, the description being that it was a Fazal Dowl or Dowl of Fazal land. In the prior one the area of the land, as on measurement, was stated to be 1262 Big. 4 Cottas and rent Rs. 858-8-0; and in the later one the area as measured was given as Bigha 1399-11 Cottas 1 Chhitak out of which 8 Cottas with rent ASection 4 was said to be Hajat and the rest of the area was assessed with a rental of Rs. 990-2-0. No particulars is regards the nature of the tenancy can be gathered from the terms of either of these documents except that the Jote was a Fasal Jote which evidently means 'for purposes of cultivation' nor any as regards the status of the tenant except that in the dowl of 1313 (1907), joynal Abedin, the person in whose Favour the settlement was made, was described as Malguzardar or rent paying holder.
2. It has been found, and about that matter there is no longer any dispute, that ho origin of the tenancy is lost in obscurity. Unknown though its origin is, it has been alleged on behalf of the defence that the jote was first taken some 150 years ago by the great great grand-father of defendant 1 Maynuddin. The pedigree of the defendants helps us to find out who the successive holders of the jote could have been; and taking the evidence on the defendants' side to be true they must have been defendant 1's great great grandfather Anwar Sheikh, great grand-father Abdul Mati Sheikh, grand-father Khajuruddin, father Joynal Abedin, and then the present defendants. Khajeruddin died in 1280 or 1281 B.S. and Joynal Abedin died in 1315 B.S. No document of Khajeruddin's time has been produced and the Judge below is correct in observing that if any history prior to 1280 B.S. is to be gathered the oral evidence that has been adduced is all that one has to look to. Of such papers that have been produced on behalf of the parties of Joynal Abedin's time and later, the only two documents of any importance as bearing on the question before us are two Chittas, one of 1286 B.S. (Ex. 24) an the other of 1309 B.S. (Ex. 12). A good deal of discussion appears to have been let in in the Court below on the question of the truth or sufficiency of the defendants' explanation for non-production of papers of any earlier dates, the explanation being that there was a fire and also an earthquake, and such discussion has also been repeated before us to some extent. But nothing has been made out which would justify us in holding that the explanation is untrue or that it is not adequate. Nor, on the other hand, are we satisfied, as apparently the Court below also was not, that the plaintiff has withheld any relevant papers. The fact remains, but only as a fact, that there are no earlier papers to go upon. The learned Judge has come to a finding on the evidence as regards the origin of the jote which he has recorded in these words:
From the evidence and from the Chitta of 1286 it may safely be inferred that the jote was of Khajeruddin's time. But there is absolutely no dependable evidence in the record to show that the jote existed from before Khajeruddin's time. Any statement to that effect is merely speculative.
3. The finding is unassailable, if dependable evidence in the shape of documentary evidence is meant, and oral evidence of matters relating to such ancient times is recorded as speculative. Mr. Sen in his arguments on behalf of the appellants has strenuously sought to make a great point of the fact that in no papers of the plaintiff prior to 1327 B.S. were the defendants described as tenure holders and that it was only in that year and later that in the talab bakis and the dakhilas the tenancy was described as a non-permanent tenure: (vide Ex. 2 Series Dakhilas, one of which Ex. 2-D, appears to have been received by defendant 1 himself, his signature appearing on the original though not in the paper as printed; and Ex. 3 Series Talab Bakis, one of which, Ex. 3, has been wrongly printed.) From this he has argued that the plaintiff was not bold enough to put forward such a case as regards the defendants' status. We see no force whatsoever in this argument, for long prior to that date the record-of-rights had declared the defendants as non-permanent tenure holders, and it is idle to suggest that the defendants were not aware of that fact.
4. Another argument which was addressed to the Court below and also to this Court was based upon the use of the word 'Chasak' as regards some of the plots of the tenancy, the Chittas of 1286 B.S. and The Chitta of 1286 B.S. is called an Ekandaj Chitta, which means Chitta of an entire village, in this case of village Gaibandha, in which the tenancy is situate. The portion which was available and has been produced is only a fragment, torn and worm eaten; and it is said that there are references in it to earlier Tankhi Chittas, that is to say, Chittas of parts of the village dated 1267 B.S. and later. In most of the entries in the Chitta of 1286 B.S. and in a few of the entries, the Chitta of 1309 B.S. the occupants are called 'Chasak' while many of those who are called 'Chasak' in the former Chitta are differently described by the use of the word 'Abad' in the latter Chitta. It was contended on behalf of the defendants that the word 'Chasak' means that the occupants were Bargadars or servants or hired labourers while the word 'Abad' signifies cultivation by ryots. On behalf of the plaintiff on the other hand it was contended that both words referred to cultivators. The learned Judge has accepted the plaintiff's contention and has explained the use of the two words in the above mentioned way by suggesting that by the date of the latter Chitta the word 'Chasak' had gone out of use, and the word 'Abad' having come into use, found more frequent mention.
5. The defendants have given some oral evidence as regards the meaning of the word 'Chasak', but that evidence is obviously unreliable, as the learned Judge has pointed out. Whether there was any real distinction between the two words, even though both may have implied cultivation, one cannot say with certainty. But it is obvious, on a close examination of the two Chittas, that the meaning which the defendants seek to put upon the word 'Chasak' cannot be its true meaning. For this view several reasons may be given. In the paper book a comparative table has been printed, which is very much misleading, being incomplete and intended to help only the appellants themselves. Even there are entries showing that the same persons, with reference to whom the word 'Chasak' was used in Chitta of 1286 B.S., were described by the use of the word 'Abad' in the Chitta of 1309 B.S., a state of things which upon the defendant's interpretation can only be explained on the supposition which is highly improbable, that during the interval that elapsed between the two Chittas the same person had transferred himself from a Bargadar or servant or hired labourer to a tenant. Again in that table there is one entry showing that certain persons with reference to whom 'Chasak' was used in the Chitta of 1286 B.S. were described in the Chitta of 1309 B.S. as former tenants in respect of the plot. Futhermore Mr. Mukherjee has drawn our attention to the fact that there are innumerable entries in the Chitta of 1286 B.S. describing the plots as ' Fasal Ijara Joynal Sheikh Chasak so and so' clearly showing that Joynal Sheikh was Ijaradar and not a ryot. The contention of the defendants based upon the Chitta of 1286 B.S. that at that date Joynal Abedin, the holder of the tenure was a cultivating ryot and not a tenure holder, cannot be regarded as valid.
6. On the question of the nature of the tenancy, it cannot be disputed that under the Bengal Tenancy Act 1885 what has to be seen is the purpose for which the right of tenancy was originally acquired vide Section 5, Sub-section (4), Clause (b), Beng. Ten. Act. And as regards a tenancy which existed from before, there having been no definition of 'ryot' in any earlier enactment, to give a person the status of a ryot, it will have to be found that he was in occupation by cultivation and payment of rent: vide Section 6 of Act 10 of 1859 and Section 6 of Act 8 of 1869; a contract conferring the status of a ryot being deducible from such circumstances. It is possible that with reference to.a tenancy of the latter kind, if nothing else is known than that the entire tenancy since its inception was in the cultivating possession of the tenant for a number of years, the tenant was a ryot even though he may have subsequently let in sub-tenants in portions of the lands of the tenancy. But if all that can be gathered in respect of an old tenancy of unknown origin is that during the first few years the tenant was in cultivating possession of a portion of lands of the tenancy, and then went on increasing his own cultivation and at the same time letting in sub-tenants on the rest of the lands, the position is very different and it would require investigation of all other attendant circumstances in order to find out whether such a person was a ryot or tenure holder. There may also be cases where it would be profitable to examine the subsequent use of the tenancy but only to the extent that such use throws light upon the attendant circumstances and in that way on the original purposes of the tenancy. And where such examination is justified, the use during the entire period of the existence of the tenancy has to be taken into account. In the Bengal Tenancy Act of 1885 there is the presumption contained in Sub-section (5), Section 5. It is a statutory presumption under that Act; but a presumption depending upon the largeness or smallness of the area of the tenancy, being founded on reason, had all along existed even before that Act as a presumption of fact.
7. Bearing these principles in mind we have now to examine the oral evidence that is on the record, for there is no document by reference to which the terms of the tenancy may be ascertained, and such documentary evidence as is on the record, the earliest of which as already stated in Chitta of 1286 B.S., far from showing that the defendants or their predecessors were ryots, point clearly to their having occupied the status of tenure holders. The defendants rely on such oral evidence as they have been able to adduce as regards the user of the tenancy in the time of Khajeruddin, who died in 1280 or 1281, B.S., and of his predecessors, Bishu, Abdul Mali and Anwar. This evidence consists of the testimony of defendant 7 Sonabhan Bewa, who is a daughter of Khajiruddin, and of six other witnesses, viz. D. Ws 4, 5, 6, 9, 20 and 21, who are the older amongst the witnesses in this case. The learned Judge has examined the evidence of each one of these witnesses with care and has expressed the view that the evidence is of a very unsatisfactory and unconvincing nature. No other view indeed is possible. Sonadban Bewa herself has made a statement which, if it is taken to be true, goes against the case which the defendants seek to make out, namely that it was only after Joynal Abedin came in that tenants began to be settled on the lands and that up to Khajeruddin's time, the lands used to be cultivated in Barga: She said:
Abdul Mali settled some tenants at first. The lands proved too large in extent for cultivation. So some tenants were settled. He brought the tenants at his own expense and settled them; they did not come and settle themselves.
8. But perhaps this statement is just as untrue as the rest of her evidence where she endeavoured to establish that her grandfather Bishu cultivated the lands with his own ploughs and cattle and with 30 or 40 servants. She admitted that Bishu Mandal died when she was a child, and that her knowledge of what used to be done in Bishu Mandal's time was acquired from what her father Khajeruddin had told her. As regards her father's time she has deposed that her father's officers used to bring paddy and rice of the Abad and to realise rents also, which latter fact must mean that there were tenants on the land. P. W. 4 Abdul Majid Mandal, P. W. 5 Mandu Sardar, and P. W. 6 Abdul Alim Sardar, have taken advantage of their ages to attempt to support the story of Khas cultivation in Khajeruddin's time, but as the learned Judge has demonstrated in his judgment, their evidence cannot be trusted. The same remark applies to P. W. 9 Darbari Mandal who has made it clear in his cross-examination that he really knew nothing about the tenancy. D. W. 20 Kanai Sarcar is an old officer of the defendants who entered their service in 1284 B.S., but has spoken of large cultivation prior to that date, and in Khajeruddin's time. He has tried his very best to support his master's cause, but it is unthinkable to rely on his evidence. D. W. 23 Mayenuddin is defendant 3 himself. He has of course deposed that the Jote was taken for cultivation and that his predecessor had all along cultivated the lands in Barga or by servant until 1285 or 1286 B.S., when tenants first began to be settled. But such evidence as he himself has given, in the absence of any reliable corroboration, would hardly suffice to prove the case which he has sought to establish.
9. There are a few other matters worth mention. In the plaint of a suit instituted in 1922 on behalf of the plaintiff against the present defendants for rent of this tenancy, it was most definitely asserted that they are ordinary non-permanent tenure holders at a variable rent (Ex. D). In their written statement in that suit (Ex. 25) the defendants controverted that assertion by saying: 'The rent land is not a permanent tenure. It is permanent and rent thereof is not enhancible.' The suit ended in a compromise in which the settlement records were referred to without challenge and the rent was admitted to be variable (Ex. 40). Here was a definite assertion of the defendants' status which was not repudiated. Then again in 1913 defendant 3 had deposed in a certain proceeding that his father, that is to say Joynal Abedin, had no Khamar land at any time. This last-mentioned fact of course is not conclusive and is perhaps capable of being explained; but there it is. On a consideration of all evidence that the defendants have adduced or called in their aid, it is impossible to hold that the presumption which they have to meet has been rebutted. The result is that we must hold that the appeal cannot succeed. It is accordingly dismissed with costs.