1. This is an appeal by the plaintiff against the decision of the Subordinate Judge of the first Court at Midnapur dismissing his suit. The plaintiff brought his suit for a declaration that he was an occupancy ryot of certain land mentioned in the plaint. The land in question is situate within the limits of a Government khas mahal. At the trial the learned Subordinate Judge dismissed the suit, on the ground that the plaintiff had failed to prove that he had served notice on the defendant No. 1 pursuant to the terms of Section 80 of the Code of Civil Procedure. The other issues the learned Judge decided in favour of the plaintiff. On this appeal coming on for hearing in the first instance, a remand was directed to the lower Court to try the issue as to whether or not notice under Section 80 had been served on the defendant No. 1. The learned Subordinate Judge has not certified to this Court that notice under Section 80 was in fact served. This finding has not been challenged, nor could it be, by the learned Senior Government Pleader, The defendant No. 1 is, therefore, in the position of an appellant in this appeal.
2. Two questions only have been presented to us for our decision, namely, (a) what is the status of the plaintiff and (b) is the present suit barred by limitation? The holding in question is of an extent of 203 bighas odd and, therefore, prima facie the plaintiff is a tenure-holder, not a ryot. No document is in existence evidencing the terms on which the plaintiff holds. But the plaintiff called evidence, which the learned Judge accepted, to prove that the tenancy in its inception was granted to the predecessor of the plaintiff for cultivating purposes. In particular the learned Judge relied on the evidence of the plaintiff's witness No. 6, who is stated to be about 87 years of age. The learned Judge remarks that this witness gave his evidence 'in so straightforward a manner that even if he had been the only witness on the point still I could never have brought myself to disbelieve him.' The evidence for the defendants seems to show that 'all the tenants on the land are bhagchasis under the plaintiff.' But bhagchasis are not necessarily tenants of the plaintiff Kade Mandal v. Ahadali Mollah 6 Ind. Cas. 594 : 14 C.W.N. 629; it also appears that the plaintiff and his predecessors in former Settlements were described as having the interest of ryots. The plaintiff has also granted rent receipts describing the tenants under him as being under-ryots.
3. I agree, therefore, with the learned Judge that the presumption created by Section 103B of the Bengal Tenancy Act is rebutted.
4. The plaintiff and his predecessors having held the land for far more than 12 years have a right of occupancy in the land.
5. The other question for our determination is whether the suit is barred by limitation. The Record of Eights was finally published on the 14th of September 1908. The plaintiff appears to have preferred an appeal to the Revenue Authorities against the entry on the Record of Rights affecting his status. This appeal was rejected by the Revenue Authorities as being incompetent. The present suit was filed on the 29th of June 1909.
6. It has been argued by the learned Senior Government Pleader that the present suit is a suit brought in respect of the settlement of any rent or omission to settle any rent under Sections 104A to 104F of the Bengal Tenancy Act. The suit, therefore, not having been instituted within the time limited by Section 104H of the Bengal Tenancy Act, the same is barred.
7. On the other hand, it is said that the present suit falls within the proviso to Section 111A of the Act, which provides that any person who is dissatisfied with an entry in, or omission from, a Record of Rights which concerns a right of which he is in possession, may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877.
8. In my opinion the present suit comes under the proviso to Section 111A and not under Section 104H. A similar view was expressed in a case reported as Promoda Nath Roy v. Asir-ud-din 11 Ind. Cas. 262 : 15 C.W.N. 896. The present appeal must, therefore, be allowed and in lieu of the order for dismissal made by the learned Judge in the Court below the Court should declare that the plaintiff has the status of a ryot with a right of occupancy in the land.
9. The respondent to the present appeal must pay to the appellant his costs of this appeal and in the Court below. The cross-objection filed by the respondent will be dismissed. We make no order as to the costs thereof,
10. I agree.