1. The plaintiff in the suit in which this appeal has arisen prayed for recovery of possession of the lands described in his plaint on declaration of his title. It appears that the lands m suit, 22 bighas 81/2 cottas in area, was comprised in a tenancy of 25 bighas 81 cottas held by one Durga Earn Ghose. The lands were purchased by one Jadu Nath Bairagi in the year 1907, and were constituted into a separate tenancy on payment of substantial selami to the landlord. It is in evidence that for a portion of the selami Jadu Nath Bairagi executed an instalment bond, which sets forth that kharij was granted on payment of selami (nazar). In the year 1913 defendant 1 in the suit purchased the lands from Jadu Nath Bairagi, and dfeendants 2 to 4 were settled as tenants under defendant 1 in the year 1925. So far as the transfer in favour of defendant 1 was concerned it is to be noticed that the landlord continued to grant rent receipts in the name of the tenant Jadu Nath Bairagi. It was in evidence that so far as defendant 1 was concerned the landlord's naib asked for kharij fees, and that the defendant was willing to make some payment for mutation of his name in the landlord's sherista, but that at the end there was no payment made as the amount demanded was large. The next stage of the case is the one appearing from the settlement records. In the settlement records as finally published defendant 1 was recorded as a permanent tenure-holder, the rent payable by whom in respect of the tenancy was liable to enhancement. As the learned Subordinate Judge in the Court of appeal below has remarked, 'immediately after such records the plaintiff brought the present suit almost as a protest.' The protest on the part of the landlord plaintiff being in regard to the entry in the settlement records that defen dant l's status was that of a permanent tenure-bolder with the incident of trans ferability attached to it.
2. The plaintiff's suit was for ejectment on the ground that the tenant Jadu Nath Bairagi had no saleable interest in the tenancy, that the said tenant had abandoned the holding and that defendant 1 had obtained no title by his purchase of the lands in suit from Jadu Nath Bairagi. The plaintiff's claim in suit was resisted by the defendants. It was pleaded by defendant 1 that Jadu Nath Bairagi's tenancy purchased by him was a permanent tenure, and he had therefore a valid title in him by virtue of his purchase. Defendant 1 also claimed title acquired by him by adverse possession as against the plaintiff landlord, The other three defendants in the suit, defendants 2 to 4, asserted that they were in possession of the lands in suit as bona fide tenants and were not liable to be evicted by the plaintiff. A number of issues were raised for trial in the suit, and the most important of them was issue 1: 'Was the tenancy of Jadu Nath Bairagi an occupancy raiyati holding or a permanent tenure?' The other issues related to the question whether permanent interest was asserted to the knowledge of the plaintiff, whether the plaintiff had recognized defendant 1 as tenant, and could defendants 2 to 4 claim to be bona fide raiyats, not liable to eviction. There was also an issue raised on the question of mesne profits claimed by the plaintiff in the suit. The trial Court dismissed the suit, holding that
the jote of Jadu Nath was a permanent tenure transferable at law Under Section 11, Ben. Ten. Act. Defendant 1, his transferee, is entitled to hold it as a tenant under the plaintiff and the plaintiff cannot enter.
3. On appeal by the plaintiff, the Court of appeal below reversed the decision of the trial Court, and passed a decree in favour of the plaintiff:
The plaintiff was to get khas possession of the property in suit after evicting the defendants and the mesne profits on the basis of rent
4. The defendants have appealed to this Court. The entry in the Record of Rights being in favour of defendant 1 the general proposition now well established that the defendant had to prove the transferability of the tenure loses much of its force, in view of the statutory presumption arising in favour of the defendant as to permanency of the tenure and the transferability of the same as such. It is however to be noticed that the entry in the settlement record shows that the defendant's tenure was not one of which the rent was fixed in perpetuity. Keeping the above position in view, the findings of fact and the conclusions arrived at by the Court of appeal below have to be examined. Some argument was advanced on the question of admissibility of a kabuliyat of 1269 B.S. alleged to have been filed on behalf of the plaintiff in the settlement proceedings and as to the propriety of the lower appellate Court in the matter of reception of that document as evidence at the appellate stage. On behalf of the plaintiff, respondent no particular stress was laid on the kabuliyat of 1269 B.S. and in our opinion no importance could be attached to this document which was on the record and had been marked for identification in the Court of first instance. Its custody was not proved, and we do not place any reliance upon the document; nor does it appear to us that the Court of appeal below attached any importance to the same, inasmuch as the only observation made with reference to the document was that
the kabuliyat shows that Durgaram took lease for the purpose of cultivation and also for habitation.
5. The observation so made does not prejudice the rights of the defendants in the suit in any way, nor does the observation help the plaintiff in his case before the Court. Apart from the kabuliyat of 1269 B.S. which might be discarded for the purpose of this litigation, the Court below has, upon the materials before it, come to the findings and conclusions based on documentary evidence adduced by the parties that Jadu Nath Bairagi was recognized by the landlord as a tenant in respect of the lands in suit on receipt of selami (nazar), and mutation was allowed only after receipt of mutation fees in respect of the transfer by Durga Ram Ghose. The Court below took into consideration the very significant fact that the parcel of the original jama left after the purchase of the big slice by Jadu Nath is still recorded in the names of Durga Ram's heirs, and they have been recorded as occupancy raiyats with regard to this parcel. As the Court below has noticed if the original jama was a tenure, a part of it left to Durga Ram's heirs would also have continued to be a tenure. The fact has also been noticed that it was when difficulty arose in effecting a mortgage of the lands purchased by Jadu Nath Bairagi that an attempt was made by him to obtain, recognition from the landlord. The kistibandi for payment of selami fixed for mutation of names was subsequent to the mortgage transaction. Relating to the transfers of the tenancy in question, to which reference has been made above, the Court below has concluded by saying that
the first transfer was recognized by the maliks on receipt of nazar; for the second there was demand of nazar and the dakhilas have been granted in the name of Jadu Nath and not in the name of the defendants.
6. The facts proved on the materials before the Court, so far as they bear upon the question of permanency of the tenancy and the transferability of the same, have been carefully set out in the judgment of the learned Subordinate Judge in the Court of appeal below. The question whether a tenancy is permanent is a question of law and not of fact. It is not right to say, as has been contended for on behalf of the defendants appellants, that the conclusions arrived at by the Court below are binding on us in second appeal as findings of fact,the correct view being that the question was one of proper inference in law from the facts as found: see Dhanna Mal v. Moti Sagar . The facts as found by the Court below have to be considered in drawing the inference of law as to whether the tenancy in a particular case was permanent. In the case before us, on the facts found, we have no hesitation in coming to the decision that the Court below has drawn the inference of law correctly, when he held that the lands appertaining to Durga Ram Ghose's jama which were purchased by Jadunath Bairagi, could not have appertained to a permanent tenure with the incident of transferability attached to the same. The learned Judge in the Court below was also in our judgment right in coming to the decision that the settlement record showing that the lands held by defendant 1 appertained to a permanent tenure, has been sufficiently rebutted by the plaintiff in the suit.
7. The question that arises for consideration next is whether defendant 1 could possibly succeed in defeating the plaintiff's claim in the suit for khas possession on the ground that he had; as the trial Court put it, ''been prescribing for a permanent tenancy since 1269.' The question has to be decided on the finding arrived at by the Court of appeal below upon evidence in the case, that there was no assertion of the permanent and transferable nature of the tenure, to the knowledge of the landlord. As found by the Court below, there was no assertion of any transferable interest before the sale in the year 1919 to defendant 1, and twelve years did not elapse from that time when this suit was instituted by the plaintiff in 1929. The assertion of any transferable right before 1919 was not 'brought home to the plaintiff.' The contention advanced on behalf of defendant 1-appellant as to the acquisition by adverse possession of the rights of permanent tenure-holder transferable at law, cannot upon the findings arrived at by the final Court of fact be given effect to.
8. The defence of defendants 2 to 4 in the suit, who have also appealed from the decision of the Court of appeal below, remains to be considered. There is no doubt that the defence was raised in the suit that these three defendants could not be evicted, as they were bona fide tenants on the lands in suit; and an issue was specially directed to this question. It was not necessary for the trial Court to consider this part of the case, in view of the conclusions arrived at on the question of the rights of defendant 1 who had settled the lands with defendants 2 to 4. In the Court of appeal below the position of defendants 2 to 4 was not separately considered, apparently for the reason that it was thought that these defendants could not resist the plaintiff's claim for khas possession if defendant 1 had no title to remain on the lands in suit as a permanent tenure-holder, with the incident of transferability attached to it. As argument was advanced before us on both sides on the question whether defendants 2 to 4 could be evicted by the plaintiff in the suit, we have thought it proper to give our decision on the same. It is to be observed at the outset that cases like that of Binode Lal Pakrasi v. Kalu Pramanik (1893) 20 Cal 708, upon which the argument on behalf of defendants Nos. 2 to 4, appellants, is founded, are to be treated as exceptions, and as it has been observed in recent decisions of this Court, the principle in the case of Binode Lal Pakrasi (1893) 20 Cal 708 is an encroachment upon the ordinary rule of law and a rule of general application, that a grantor is not competent; to confer upon the grantee a better title than he himself possesses; and the principle laid down in that case must therefore be cautiously applied, and is not to be extended: see Krishna Nath v. Muhammad Wafiz AIR 1916 Cal 598. It may be mentioned that want of good faith either on the part of the lessor or the lessee makes the rule in Binode Lal Pakrasi's case (1893) 20 Cal 708 inapplicable. In the case before us there could not be any assumption or any presumption of good faith on the part of defendant 1 in this case on the facts found by the Court below. There could also be no presumption of good faith on the part of defendants 2 to 4, seeing that they could not lay claim to a better position than that of persons entering into a transaction of lease without any inquiry as to the lessor's title, the facts found in this case pointing clearly to the situation that defendant 1 had failed to obtain recognition of his purchase of the lands in suit from Jadunath Bairagi, and that rent receipts were never granted by the landlord to defendant 1 in his own name. In our judgment the case set up by defendants 2 to 4, that they were bona fide tenants on the lands in suit, was not, and could not possibly be, established.
9. If the plaintiff landlord, the respondent in this Court, is entitled to khas possession of the lands on eviction of the defendants, as he is, according to our decision, the plaintiff-respondent is also -entitled to get mesne profits from defendant 1, as claimed in the suit, on rental basis, as held by the Court of appeal below. The result of the conclusions arrived at by us as indicated above is that the appeal is dismissed with costs.