1. This is an appeal by the defendants and it arises out of a suit for khas possession of certain lands by the plaintiff after service of notice under Section 49 of the Bengal Tenancy Act. The plaintiff stated that the defendants took an under-raiyati lease from them in 1293 of 1 kani of land for a term of 9 years and that the plaintiff on the expiration of the term of the lease served a notice upon the defendants under Section 49 of the Bengal Tenancy Act and that the defendants having refused to vacate the lands this suit is brought for khas possession of the land covered by the under-rayati lease of the defendants.
2. The defence of the defendants was that they were the owners of kaimi mourashi tenancy of the homestead of one Jagamohun Bhuiya measuring about 2 kanis of lands and that in 1293 the defendants sold the same to the plaintiff and on that very day they took a sub-lease by a registered patta from the plaintiff of a portion of the land sold by them to the plaintiff which was their own homestead comprising an area of I kani at a rent of Rs. 16 a year which was fixed for 9 years and that it was agreed by the plaintiff in that lease that the defendants shall never be liable to ejectment by the landlord. The defendants further alleged that the tenancy sold by them to the plaintiff was a permanent lease-hold interest in homestead land containing building, tanks, garden, etc., and the plaintiff described his own right in the sub-lease as that of 'a kaimi mourashi raiyat' and in that capacity he granted the sub-lease to the defendants and, therefore, the plaintiff was estopped from showing that he was (SIC) an occupancy raiyat and further that the Bengal Tenancy Act did not govern this case.
3. The learned Munsif held that the plaintiff was a raiyat with right of occupancy and that the defendants were under-raiyats and, therefore, the plaintiff was entitled to eject the defendants after service of notice under Section 49 of the Bengal Tenancy Act, which he found was duly served on the defendants. The Trial Court decreed the plaintiff's suit.
4. On appeal by the defendants the learned District Judge has affirmed the decree of the Court of first instance and against this decree the defendants have preferred this appeal.
5. The learned District Judge finds that in the entry in the Record of Rights the defendants were recorded as 'settle raiyats under a raiyat' which is clearly impossible.
6. The learned Judge held the entry in the Record of Rights that the defendants were under-raiyats with a right of occupancy is of no avail to them because, they have failed to adduce any evidence that there was a local custom to the effect that under-raiyats could acquire a right of occupancy.
7. The learned District Judge further held that the plaintiff was not estopped from showing that he was a raiyat with right of occupancy. In this view he held that the decision of the Full Bench in the case of Chandra Kanta Nath v. Amjad Ali Hazi 61 Ind. Cas. 466 : 32 C.L.J. 296 : 25 C.W.N. 4 : 48 C. 783 was applicable to this case and that the decree made by the Trial Court was correct and dismissed the appeal.
8. In this second appeal the learned Vakil for the appellants raised the following points:
Firstly.--That the learned District Judge was in error in holding that the entry of the Record of Rights was as stated by him and this mistake has vitiated his judgment.
Secondly.--That the description of the landlord in the lease of 1293 that they were 'kaimi mourashi raiyat' did not mean that they were raiyats with right of occupancy but it meant that the plaintiff had a permanent and heritable tenancy in the land; the word 'raiyat' meant a tenant and not an agricultural raiyat as the lease was evidently of bastu land, namely, the homestead of Jogu Mohan Bhuiya.
Thirdly.--That the plaintiff was estopped (sic) alleging that he was merely an occupancy raiyat and not the holder of a permanent heritable tenancy of bastu lands.
Fourthly.--That the entry in the Record of Rights was that the under-raiyati of the defendants was with right of occupancy and that the onus of proof showing the contrary lay on the plaintiff and not upon the defendants as was erroneously held by the learned District Judge.
Fifthly.--That the Bengal Tenancy Act did not apply to this case and that a notice under Section 49 of the Bengal Tenancy Act did not terminate the tenancy and, therefore, the plaintiff had no right to eject the defendants.
Sixthly.--That in the circumstances of the case the defendants were entitled to claim for the lands which was their homestead, the benefit of Section 182 of the Bengal Tenancy Act.
9. As to the first point, Mr. Sen who appeared for the respondent very frankly admitted that the learned Judge misread the entry in the Record of Rights. I shall deal with the question as to the effect of the entry in the Record of Rights when correctly read.
10. It is undisputed that the lessor is bound by the contract which he made and by which he agreed not to eject the tenants unless he can show that the contract is invalid in law. He seeks to do so by alleging that the lease on the face of it shows that the right of the lessor was that of an occupancy raiyat and, therefore, a sub-lease for more than 9 years is void.
11. The first question, therefore, which requires consideration is as to what was the status of the landlord and does the lease on the face of it show that the lessor was an occupancy raiyat.
12. The lease does not contain any indication that the lease was for agricultural land and the lease was for agricultural purposes. The entire area of the land was described as the homestead of Jaga Mohan Bhuiya consisting of and comprising 'garden, road gopat, khik, chatan with tank and pond' and the 1 kani let out to the defendants was described as the remaining 1 kani of land comprising the 'bhita garden, pathway, gopal, khil chatan, ditches and tank appertaining to your residential homestead.'
13. The lessor described his right to quote the words of the lease (kaimi mourashi raiyati) in the homestead of Jaga Mohan Bhuiya and a sub-lease of the homestead of the vendor was granted by the sub-lease of 1293. The words kaimi mourashi are quite appropriate when used with respect to a permanent jama of a piece of homestead land. The only justification for calling this as an agricultural lease is the use of the word raiyat. The word 'raiyat' does not necessarily mean an agricultural tenant. It is often used in the mofussil in its wider sense of meaning a tenant in general. If the word is read with the context I think the word should be read to mean a tenant of homestead land. The lessee of a piece of homestead land is ordinarily a tenant and not a raiyat. The lease-hold interest described is of lands forming homestead and there is no indication in the lease that any cultural land was demised.
14. The description of 'kaimi meurashi' applies very aptly to a non-agricultural tenancy. If the lands were agricultural or agricultural lease was intended the word occupancy raiyat so well known would have been used. I am, therefore, clearly of opinion that the lessor intended to put forward himself as the owner of a permanent heritable tenancy of a homestead land and in the face of the lease that is the only meaning which can be ascribed to the words. The plain tiff, in my opinion, has failed to show that the agreement not to eject the sub-tenant is invalid in law.
15. On the construction of the lease which I ave put upon it, the plaintiff's case would ail because, the Bengal Tenancy Act will have no application to the sub-lease held by the defendant.
16. In the circumstances of this case it is not necessary to deal with all the points raised on behalf of the appellants.
17. Even assuming that the plaintiff was an occupancy raiyat I think that the principle laid down by the Full Bench if applied to this case, the plaintiff would be estopped from showing that he was an occupancy raiyat, or that the defendants were under-raiyats and that the agreement not to eject the defendants was invalid.
18. The plaintiff in order to show that the estoppel does not arise must show that the sub-lease 'on the face of it' was by an occupancy raiyat. As I have already pointed out the lease described the right of the plaintiff as 'kaimi mourashi' as distinguished from ah occupancy raiyat. It is true that an occupancy right is also permanent and heritable. The lease shows that the lands were bastu lands, and, therefore, it cannot be said that the sub-lease on the face of it was one granted by an occupancy raiyat to an under-raiyait.
19. The plaintiff is, therefore, estopped from showing that the defendants were under-raiyats. The learned District Judge, as I have already said, took an erroneous view of the entry in Record of Rights. He is, also in error in saying that the onus of proving that the defendants acquired an occupancy right under a local custom, lay on them. The Record of Rights is in their favour and it was for the plaintiff to rebut it.
20. We think, therefore, that the plaintiff is not entitled to eject the defendants and his suit must fail and is dismissed with costs in all Courts.
21. I agree.