N.R. Chatterjea, J.
1. These appeals arise out of suits for ejectment of the defendants, who were tenants under the plaintiffs, on the expiry of the term of their leases. The plaintiffs allege that they themselves are occupancy raiyats, and the defendants are under raiyats and are liable to be ejected under the provisions of Section 49, Clause (a), on the expiration of the term, of the written leases, and that, even if the defendants are non-occupancy raiyats, they are liable to be ejected under Section 44, Clause (e), on the ground that the terra of their leases had expired, they having been admitted to occupation of the lands under registered leases.
2. The Court of first instance held that the status of the plaintiffs was that of raiyats, and the defendants were under-raiyats and even if the latter had a raiyati right, they had not acquired a right of occupancy and accordingly decreed the suits. On appeal, the learned District Judge held that the plaintiffs are tenure-holders and the defendants are non-occupancy raiyats, but that they could not be ejected, first, because they were not admitted to occupation of the lands by the registered leases, and secondly, because the defendants were not offered the option of renewal mentioned in the leases. The suits were accordingly dismissed. The plaintiffs have appealed to this Court.
3. The lands are chur lands in a Government khas mahal, and the ijaradars under the Government granted a settlement of the lands to certain persons who, with the exception of one, were their relations. The original lease granted in 1888 was for 1,550 bighas. There was a fresh settlement in 1892 93 for 1,309 bighas with the same persons. The chur increased to about 7,000 bighas and the plaintiffs at one time obtained settlement of the whole chur. It appears that subsequently the settlement was limited to the original area, and litigation is going on in connection with the limitation of the area. The area settled with the plaintiffs in any case far exceeded 100 bighas and they are, therefore, to be presumed to be tenure-holders until the contrary is shown. Then again in the Record of Rights prepared in the last survey and settlement proceedings, the plaintiffs were entered as tenure-holders and the defendants as raiyats. Under Section 103B of the Bengal Tenancy Act the entry is to be presumed to be correct until it is proved by evidence to be incorrect. There is, therefore, a double presumption that the plaintiffs are tenure-holders.
4. The plaintiffs, however, say that they are raiyats and they rely upon the statement in the lease granted to them, that the lessees were to hold and enjoy the land by tilling and cultivating the same at their own expense, as showing that they were raiyats, and they also rely upon the fact that in the rent receipts granted to them by the ijaradars and subsequently by the Government Khas Mahal Tehsildars as also in the certificates under the Public Demands Recovery Act for realizing rents from them, the tenancy was described as non-occupancy jote.
5. The learned District Judge has held that the land was not taken for the purpose of cultivation by the plaintiffs, although it was so stated in the lease, that the plaintiffs were rent-receivers, and that having regard to the area of the land and other circumstances stated in the judgment he held that the plaintiffs are tenure-holders and the defendants are raiyats.
6. It is contended on behalf of the appellants that there being no ambiguity in the lease as to the purpose for which the laud was acquired by the plaintiffs, the Court of Appeal below is wrong in relying upon the surrounding circumstances, and the fact that the lands were subsequently let out to tenants, in determining the question of the status of the plaintiffs. But although, where it is shown by a lease unambiguous in its terms that the land was originally acquired by the tenant for cultivating it by himself or by hired servants or by members of his family, the character of the tenancy is not altered by the mere fact that the land was subsequently let out to tenants, and although in such a case the land may, as between the lessor and the lessee, be taken to have been acquired for the purpose as stated in the lease itself, it is certainly open to a person who is no party to the contract to show that the real purpose for which the land was acquired by the lessee was other than what was stated in the lease.
7. In the case of Promoda Nath Roy v. Asir-ud-din Mandal 11 Ind. Cas. 262 : 15 C.W.N. 696 upon which reliance is placed on behalf of the appellants, the question as to the nature of the tenancy of the tenant arose between the parties to the lease, and no question was raised that the purpose for which the land was, acquired was wrongly stated in the lease. The only question considered by me was whether the nature of the tenancy was altered by the mere fact that the lands were subsequently let out by the tenant, and the question of the status of a tenant in relation to his subtenants was not considered.
8. The Court below has held that the real purpose for which the land was acquired by the plaintiffs was not cultivation by themselves or by relations, servants or hired labourers. It has arrived at that finding from the surrounding circumstances and the subsequent conduct of the parties, such as the large area of the land, the fact that the plaintiffs do not belong to the cultivating class, that they never cultivated any lands themselves or by hired labourers, that the land which was unreclaimed chur land, was reclaimed by the tenants who constructed bunds (apparently for irrigating the lands) and held the lands all along on payment of rent to the plaintiffs. The appellants rely upon the fact that in the jamabandi made by the Settlement Officer in 1893, he showed 65 out of 98 bighas of arable lands as being in the khas management of the plaintiffs and they say that even now there are over 100 bighas in their khas possession. The learned Judge, however, apparently does not believe that any land was in fact in the khas cultivation of the plaintiffs. He says: 'Documents are not always what they seem, for the oral evidence on the side of the plaintiffs is very different. There is no suggestion that these bhadraloquea or their relations or their hired labourers began the work of cultivation or even came near the place,' and after referring to the evidence on the point observes: 'The inference is obvious that there was no cultivation directly for the plaintiffs' and again, I strongly suspect that the lands in the so-called khas possession were only lands for which definite kabuliats were not taken.' Then the learned Judge observes : Then we have the fact that as soon as the lands became extensively fit for cultivation tenants were settled, and Kabuliats taken from them at rents several times more than what they were paying.'
9. It is true the fact that the plaintiffs are bhadraloques, does not by itself show that the lands were not acquired for the purpose of cultivation, as most bhadraloques in the villages in this country carry on cultivation by servants or labourers, but the learned Judge apparently does not believe that the lands were reclaimed or brought under cultivation by such agency. The findings of the learned Judge negative the contention that the defendants acted as labourers for the plaintiffs, in reclaiming and bringing the lands into cultivation in the expectation of getting settlement of the lands.
10. The statement in the lease it self as to the purpose for which the land was acquired, and the fact that the tenancy was treated all along by the Government as non-occupancy jote, are certainly in favour of the plaintiffs, but they are, as already stated, not conclusive against the defendants, and they have been considered by the Court below in coming to the finding that although the land was acquired ostensibly for the purpose of cultivation by themselves, the real purpose was not so.
11. The appellants also rely upon the kabuliats executed by the defendants themselves in favour of the plaintiffs as showing that the former admitted that the plaintiffs' tenancy was a raiyati one. The kabuliats are described as 'ijara kabuliats' and the plaintiffs are described therein as being owners in possession of without right jote mahal.' It is stated, you having agreed to let out the lands of the said mahal in ijara lease, &c.;, &c.;' The word jote'' does not necessarily mean the interest of a cultivator, but it is contended that the words without right' mean that the plaintiffs were owners of a non-occupancy jote. If those words stood alone, that might be taken to be the meaning, but the word mahal' is used in connection with the plaintiffs' right more than once, and that word is not used in connection with the interest of a raiyat. The description in the kabuliats, therefore, is not clear to show that the defendants admitted that the plaintiffs were raiyats. Under the circumstances we are unable, in my opinion, to interfere with the finding arrived at by the Court of Appeal below, and must accordingly hold that the interest of the plaintiffs was that of tenure-holders in relation to the defendants, and that the latter are raiyats.
12. But although the defendants are raiyats, it has not been shown that each individual tenant really held the land in suit for a period of 12 years, and the Court below has accordingly held that the defendants are not settled raiyats or occupancy raiyats, but are non-occupancy raiyats. A non-occupancy raiyat, where he has been admitted to occupation of the land under a registered lease, is liable to be ejected on the expiry of the term of his lease. The defendants executed registered kabuliats, but the Court below has held that they were not admitted into occupation of the lands by the kabuliats and were not, therefore, liable to be ejected. The finding of the Court below, however, is not clear that before execution of the kabuliat each individual raiyat reclaimed and was in possession of the particular lands in respect of which a kabuliat was executed by him. The learned Judge observes: 'It was the defendants who began reclaiming the chur by making ails, by grazing cattle and so forth and that at first they paid only a small rent. People acquainted with the churs know that this is done by a whole body of villagers joining together and we get indications of it from the report of the Settlement Officer in 1895, and it is these villagers who execute kabuliats later on when the lands become fit for cultivation.' Further on, referring to the evidence of possession previous to the kabuliats he observes: 'Take the case of Jadeb Ali... It may be that Jadeb Ali was in possession of at first only a small bit of land and that later on he executed his kabuliat along with others for a larger area or for a different area. Jadeb Ali's previous possession, however, makes it clear that the fact relied on in these kabuliats, viz., that it was settlement of waste land for the first time, is untrue. The fact seems to be that these defendants reclaimed the lands and eventually when the lands became fit for cultivation they were distributed among them and they then executed kabuliats at a progressive rate of rent.' If the defendants as a whole body of villagers joining together reclaimed the chur' by making ails, by grazing cattle and so forth and the area in respect of which kabuliat was executed by a tenant was not the same as that which was in his possession prior to the kabuliat as indicated in the observation made by the Judge, it cannot be held that the defendant in each particular case was in occupation of the land in respect of which he subsequently executed the kabuliat. The finding is not clear on the point and I think, therefore, that the case should go back to the Court of Appeal below for a decision on that point.
13. The other ground upon which the Court below held that the defendants were not liable to be ejected is that in the kabuliats there was an option of renewal and this option was not given to the defendants.
14. In the kabuliats there is a clause that on the expiry of the term the tenant shall give up the land or take settlement of the land, 'according to the terms on which the lessors wish to lease it out in future', by executing a kabuliat in favour of the latter and if he did not execute any kabuliat, he shall have no right to possess the land and the lessors would be able to dispose of the land according to their wish by bringing the same into their khan possession.
15. It will be seen that the fresh settlement on the expiry of the lease was to be according to the terms on which the lessors wished to lease it out in future.' The terms, being undefined and depending upon the will of the lessor, cannot be enforced. Besides, the question of option of renewal was not raised in the written statement nor in the issues, and evidence was not gone into upon the point whether the plaintiffs offered to the defendants a renewal of the leases and whether the latter refused the offer. Having regard to the defence taken by the defendants, viz., that they were settled raiyats of the village and were occupancy raiyats, it is not likely that they were willing to accept a renewal of the lease. However that may be, I do not think the Court of Appeal below ought under the circumstances to have allowed the question of the option of renewal to be raised for the first time in appeal.
16. The result is that the cases will go back to the lower Appellate Court for a decision of the question, whether the defendant in each case was in occupation as tenant of the particular lands in respect of which he subsequently executed his kabuliat. If the question is decided in the affirmative the suits will be dismissed, if in the negative the decree of the Court of first instance will be restored. Costs will abide the result.
17. I concur in the order which my learned brother proposes to make, but express no opinion on the question whether a mere statement in a lease that the land is let to the tenant for the purpose of being cultivated by himself or his servants, is conclusive even as against the landlord to show that the tenant is a raiyat, whatever the area of the land may be or whatever may be done under the lease. On that question I should like to reserve my opinion.