1. This is an appeal on behalf of the first defendant in an action in ejectment. The plaintiff-respondent commenced this suit on the ground that the laid in the occupation of the appellant was zerait and that the defendant had no right to continue in occupation thereof after the expiry of the term of a lease granted to him on the 13th May, 1902. The defendant resisted the claim on the ground that the land was not zerait, that it constituted an occupancy holding and that he was not liable to be evicted. The Court of first instance dismissed the suit. Upon appeal, the District Judge has decreed the claim. On behalf of the defendant, this decision has been assail ed substantially on three grounds, namely, first that the conclusion that the land in zerait is based upon evidence which is not admissible in law; secondly, that the Judge has not considered whether the defendant was protected from ejectment under Section 116 of the Bengal Tenancy Act, even if it was conceded that the case fell within Section 10 of the Bengal Tenancy Act, and, thirdly, that the Judge ought not to have held that if the land was not zerait, the defendant was liable to be ejected under Clause (c) of Section 44 of the Bengal Tenancy Act.
2. In so far as the last ground is concerned, it is, in our opinion, clearly well founded. Section 44 provides in Clause (c) that a non-occupancy raiyat shall be liable to ejectment where he has been admitted to occupation of the land under a registered lease, on the, ground that the term of the lease has expired. If it is assumed for a moment that the land is not zerait and that the defendant was an occupancy raiyat who was let into occupation on the 13th May 1902, it, follows that under Section 44, he would be liable to be ejected after the expiry of the lease on the 13th May 1905. But Section 45 provides that a suit for ejectment on the ground of expiration of the term of a lease shall not be instituted against a non-occupancy raiyat unless notice to quit has been served on the raiyat not less than six months before the expiration of the term of the lease and shall not be instituted after six months from the expiration of the term. This Section was repealed by Section 2 of Act I of 1907 (B.C.); but it was in force when the term of the lease of the 13th May 1902 expired in 1905. The liability of the defendant to be ejected under Clause (c) of Section 44 accrued at that time. It is not suggested that the landlord has complied with the requirements of Section 45, that is, that he has served notice on the raiyat not less than six months before the expiration of the term. Nor has he instituted a suit for ejectment within six months from the expiration of the term. The right of the landlord, therefore, to eject the defendant as a non-occupancy raiyat under Clause (c) of Section 44 read with Section 45, has never become enforceable. The subsequent repeal of Section 45 in 1907 cannot clearly revive the right of the landlord. We must take it, therefore, that if the land is not zerait and if the possession of the defendant is that of a non-occupancy raiyat under the lease of the 13th May 1902, he is not liable to be ejected.
3. It is now necessary to consider the first two grounds urged in support of the appeal. The learned District Judge has held that under Sections 120 and 103(B) of the Bengal Tenancy Act, there is a presumption in favour of the tenant that the land in suit is not zerait. But he has also held that the landlord has sufficiently rebutted that presumption by the oral testimony of witnesses who support the case by the certified copy of a former deposition of the defendant dated the 1st July 1904 in which he admitted that on his application he had obtained the zerait land from the Manager, and by the evidence of the kabulyat itself the execution of which was not denied by the defendant. With reference to this analysis of the evidence on the record, it has been argued by the learned Vakil for the appellant that the evidence which is made the foundation of the judgment of the District Judge is irrelevant. He has contended, first, that under Section 120 of the Bengal Tenancy Act an admission by the defendant in his previous deposition recorded on the 1st July 1904 is not admissible under Sub-section (2) of Section 120; secondly, that the mere assertion of a witness that the land is zerait is not admissible; and thirdly, that the mere execution of a kabulyat in 1902 is no evidence that the land was zerait. In support of these propositions, the learned Vakil for the appellant has placed reliance upon the case of Nilmoney Chuckerbutti v. Baikant Nath Bera 17 C. 466 and has suggested that the contrary view taken in the case of Bhagtu Singh v. Raghu Nath Sahai 13 C.W.N. 135 : 9 C.L.J. 15 : 1 Ind. Cas. 571 does not give effect to the true intention of the Legislature. In order to determine the validity of this contention it is necessary to consider the terms of Section 120 of the Bengal Tenancy Act.
4. Section 120, it will be observed, does not furnish any definition of what constitutes a proprietor's private land. But it is plain that the intention of the Legislature was that no new proprietor's private lands should be created after the Bengal Tenancy Act had come into force. In fact, the view cannot be successfully contested that what is proprietor's private land now must have been the proprietor's private land at the time of the creation of the zemindari, in other words, such lands only can be treated as private lands which were originally set up by the zemindar as his private land. The policy of the Legislature is that a zemindar should not be at liberty to add to the stock of his private lauds, that is, to absorb the raiyati lands of the estate and convert them into his private lands. The policy of the Legislature has been to discourage the prevention of acquisition of special rights by tenants in lands originally treated by the zemindar, not as his private land but as part of the stock of the raiyati land of his estate. Starting with this principle in view, it is clear that the Legislature intended in Section 120 to impose the conditions under which a particular land might be proved to be the proprietor's private land. Sub-section (1) lays down that the Revenue Officer shall record a parcel of land as a proprietor's private land when one of two elements is established. If it is prove that the land has been cultivated as khamar zerait niz jote or kamat by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of the Bengal Tenancy Act, the land must be recorded as the proprietor's private land. Similarly, if it is proved that the cultivated land is recognised by village usage as proprietor's khamar zerait, niz jote or kamat, it is to be recorded as proprietor's private land. In other words, if one of these two elements is established the inference irresistibly follows that the land is the proprietor's private land. The Legislature, however, does not stop here, and proceeds to provide in Sub-section (2) for cases not comprised in Clauses (a) and (b) of Sub-section (1). But though Sub-section (2) has a wider scope, the landlord, as will be presently seen, is in a position of considerable disadvantage, it starts with the presumption against him that the land is not his private land and the burden is cast upon him to establish to the satisfaction of the Revenue Officer or the Civil Court under Sub-section (3) that the land is of the character which he attributes to it. Sub-section (2) provides that in determining whether any land ought to be recorded as a proprietor's private land, the Officer shall have regard to local custom and to the question whether the land was, before the second day of March 1883, specifically let as proprietor's private land and to any other evidence that may be produced, but shall presume that the land is not a proprietor's private land until the contrary is shown. With regard to this Sub-section it has been argued by the learned Vakil for the appellant, upon the authority of the decision in Nilmoney Chuckerbutti v. Baikant Nath Bera 17 C. 466 that the phrase 'any other evidence that may be produced' ought to be interpreted in a narrow sense, namely, as any other evidence that may be produced to show the assertion of any title on the part of the proprietor and communicated to the tenant before the 2nd March 1883. In our opinion, the restricted interpretation suggested is not borne out by the language used by the Legislature; and if the case before us were precisely of the same description as the one considered by the learned Judges, it would have been necessary for us to refer the question to a Full Bench. The case before us, however, is distinguishable and stands on an entirely different footing, and must be decided in accordance with what appears to us to be the plain meaning of Sub-section (2) of Section 120. As we interpret that sub-section, the Legislature directs that the Revenue Officer shall have regard to local custom and to the question whether the land was, before the second day of March 1883, specifically let as proprietor's private land and to any other evidence that may be produced for the purpose of establishing that the land was proprietor's private land. It may be conceded that the use of the expression whether the land was, before the second day of March 1883, specifically let as proprietor's private land, by implication excludes evidence to show that the land had after that date been specifically let as proprietor's private land The Legislature, for obvious reasons, may have intended that the Mot,, that the landlord had after that date specifically let the land as his private land, would not be allowed to weigh in his favour. But it does not follow that 'any other evidence' to which reference is made must necessarily be evidence to show that the landlord had before the second day of March 1883 made an assertion of title and communicated it to the tenant, We have not been able to discover that the view taken in Nilmoney Chuckerbutti v. Baikant Nath Bera 17 C. 466 has been adopted in any other case, and possibly the principle laid down in that case was intended by the learned Judges to be taken only as referring to the particular kind of evidence then sought to be adduced. In that case, it was attempted to be shown that in 1883 and 1886, the landlord had asserted, in certain proceedings under the Bengal Tenancy Act, that the land was zerait and in the litigation which subsequently ensued, the landlord sought to rely upon this assertion as evidence in his favour. With reference to this, the learned Judges observed that the expression 'any other evidence' means 'any other evidence produced to show the assertion of title on the part of the proprietor and communicated to the tenant before that date.' If the learned Judges intended to lay down broadly that evidence of other descriptions would not, under any circumstance, be admissible, we are unable to accept such conclusion as justified by the plain language of the section. The case of Sher Bahadur Sahu v. M.H. Mackenzie 7 C.W.N. 400 does not militate against the view we take, The evidence excluded in that case was evidence to show that the land had after the 2nd March 1883 been specifically let out as proprietor's private land; as we have just indicated, it may be a reasonable view of Sub-section (2) to hold that evidence of this description was intended to be excluded by the Legislature. On the other hand, the case of Bhagtu Singh v. Raghunath Sahai 13 C.W.N. 135 : 9 C.L.J. 15 : 1 Ind. Cas. 571 supports the interpretation we have adopted, although we must add that we are not prepared to distinguish the earlier oases on the ground suggested by tbe'learned Judges, namely, that they were cases decided by a Revenue Officer, whereas the case then before the Court was tried as a civil suit. Sub-section 3 makes it patent that the two classes of cases stand on the same footing. In the light of these principles, let us examine whether the evidence to which exception has been taken is really irrelevant. In so far as the certified copies of the former deposition of the defendant recorded in the 1st July 1904 is concerned, it is clear that the identity of the land must first be established. If the identity is so established we are of opinion that the evidence would be admissible, and would fall within the description of any other evidence, in Sub-section (2) of Section 120. In so far as the oral testimony of witnesses is concerned, the question arises whether a bare assertion by a witness that the land is zerait is relevant. It may be pointed out that whether the land is zerait within the meaning of Section 120, is not a simple question of fact. It is, as the learned Vakil for the respondent has suggested, a mixed question of fact and law. It would, therefore, be ordinarily necessary for the witness to state the ground for his conclusion; in other words, unless he had special means of knowledge, one would expect him to state facts which would show that the case fell within either Clause (a) or (6) of Sub-section (1) or within Sub-section (2) of Section 120. As we understand the evidence, the substance of which has been stated to us, the statements by the witnesses are not bare assertions of this kind. They have generally stated that the land was cultivated by the landlord as his zerait land for a number of years. That, undoubtedly, would be admissible in evidence and, if believed, might justify a finding in favour of the landlord.
5. As regards the third class of evidence, namely, the factum of the execution of the kabulyat we are unable to regard it as any evidence that the land is zerait. Possibly what the learned Judge intended was that it was unlikely that if the defendant had really the status of an occupancy raiyat, he should execute a fresh kabulyat in favour of the landlord. That, no doubt, is a circumstance which, along with the other evidence on the record, may be taken into consideration. But, as the District Judge himself has pointed out, the kabulyat does not contain any admission on the part of the tenant that the land leased was zerait. If it did contain any such admission, as the kabulyat was executed after the 2nd March 1883, it would be of no assistance to the landlord, because it would be evidence that the land had, after that date, been specifically let out as the proprietor's private land. It is impossible for us, however, upon the judgment as it stands to decide this case finally. We are not satisfied that the District Judge has examined the evidence as a whole with specific reference to the elements mentioned in the various Clauses of Section 120. It is, therefore, necessary in the interest of justice that the case should be reconsidered from this point of view. If the District Judge, upon an examination of the whole evidence from the point of view suggested, comes to the conclusions that the land is zerait within the meaning of Section 120, the next question will be, whether the defendant is liable to be evicted under Section 116, which provides that nothing in Chapter V shall confer a right of occupancy in, and nothing in Chapter VI shall apply to, a proprietor's private land where any such land is held under a lease for a term of years or under a lease from year to year. Before, therefore, the landlord succeeds, he must prove the conditions under which the defendant was let into occupation. It is important to observe that the case for the defence was that, although the kabulyat was executed in 1902, the defendant has, as a matter of fact, been in occupation from an earlier period, and the judgment of the original Court indicates that the Munsif was prepared to accept this theory. But the District Judge does not appear to have considered this point in detail. It will, therefore, be necessary for him, if he finds in favour of the landlord under Section 120, to consider whether a case for ejectment has been made out under Section 116.
6. The result is that this appeal is allowed, the decree of the District Judge set aside and the case remitted to him in order that the appeal may be re-heard. The costs of this appeal will abide the result.