1. This appeal arises out of a suit in ejectment wherein the plaintiffs were unsuccessful in the Court of first instance in getting a decree of khas possession against the defendant, and only succeeded in getting a decree for rent for three years at a certain rate. This decree was set aside on appeal by the plaintiffs, the learned Subordinate Judge having allowed the plaintiff's claim in full and given them khas possession by eviction of the defendants. The defendants are the appellants in this Court.
2. The question which arises for consideration in the present appeal is what are the respective status of the plaintiffs and the defendants in this case; with regard to a question of this description, decided cases afford us very little assistance. There are certain principles which are applicable to such cases and they are well settled. In a case where the origin of the tenancy is unknown or where the document creating the tenancy is equivocal or ambiguous in its terms, one has got to take into consideration the attendant circumstances, and evidence as to the mode of enjoyment of the tenancy is also admissible and may be considered in order to arrive at a proper conclusion. Another principle is that a tenancy created for a particular purpose may subsequently by conduct of parties be converted into a tenancy of a different character. Now, in the present ease, it is true that the tenancy of Nimai Babu, who was the predecessor of the present Plaintiffs, was an occupancy holding: and it is also true that no presumption arises from the area of the holding so as to show that it was anything but an occupancy holding in its inception. Originally therefore, it was an occupancy holding and it retained that character until it was purchased by the original plaintiff Madhab Das in the name of his mother-in-law. Then Madhab Das obtained a settlement from the landlord by a confirmatory lease dated the 28th Kartick 1275 B.S. It is necessary to investigate if the tenancy underwent any change in its character when it came into the hands of Madhab Das. It will appear from the recitals in the aforesaid document that at the time when it was executed the lands were in the possession of the original plaintiff Madhab Das through tenants and the landlord settled the same with Madhab Das at a yearly rental of Rs. 16 fixed in perpetuity. The predecessor of some of the defendants was already on the land at the date of this Potta. In the Potta the occupation of Madhab Das was described as money-lending. It gave Madhab Das the right to hold the lands either by cultivating them himself or by others. Since then at any rate, the defendants or their predecessors have been in possession of the lands by actual cultivation for a period of nearly 50 years, while Madhab Das never had the lands in his khas possession and to continue to be in possession merely by receipt of rent. So far as the plaintiffs are concern-. ed therefore they never treated their interest in the tenancy as anything else than that of a tenure-holder.
3. Then again as for the defendants, there is no document creating their tenancy. The origin of their tenancy, therefore, is unknown; that their predecessor was in possession of the lands by actual cultivation was recognised by Madab Das in the Patta referred to above, and they have been as I have said above, actually cultivating the lands for a period of nearly 50 years.
4. Under the circumstances it would be wrong, in my opinion, to hold that the plaintiffs ever treated the tenancy belonging to them as otherwise than that of a tenure holder and the rights of the defendants otherwise than those of occupancy ryots. In my judgment, the defendants are occupancy ryots in this holding and, therefore, they are not liable to eviction. The decree passed by the learned Subordinate Judge should, in my opinion, be set aside and that of the Court of first instance restored with costs in this Court and in the Court of appeal below.
5. When the above judgment was being delivered learned Vakil for the appellants drew my attention to the fact that defendants' predecessor was first induced into the lands by Madhab Das. This is not inconsistent with anything that has been said above and does not, in my opinion, alter the aspect of the case.
6. I agree.