R. Couch, J.
1. This is an appeal from a decree of the High Court at Calcutta whereby the decree of the Subordinate Judge of Bhagalpore was reversed, and the respondent, the plaintiff in the suit, was awarded possession of Mouza Balwani with mesne profits thereof from the 22nd of August 1876, together with interest and costs.
2. Mouza Balwani is situate within, and forms part of, Pargana Gedhour, the respondent's ancestral zamindari. On the 21st of February 1798, a patta was granted by the Government to Raja Gopal Singh and Raja Bharat Singh, therein described as zamindars of Pargana Gedhour, in which it is stated that the annual consolidated jama of the said Pargana, inclusive of the ganjats, markets, bazaars, all sayers and motahariffas, and also of rent-free lands held under sanads and without sanads, had, together with the fee of kanungos, been fixed and assessed permanently at sicca Rs. 15,001 from 1205 Fasli. In the register of Pargana Gedhour for the year 1205 Fasli, the gross proceeds of Mouza Balwani are entered as Rs. 6-3-10, and the sudder jama as Rs. 4-1-5, and it is not disputed that at that time it was almost wholly in jungle and unprofitable. It appears from the thakbust map, which was prepared in 1846, that the entire area of the mouza is 7,500 bighas, of which 3,000 were then under cultivation.
3. On the 28th Kartick 1206 Fasli, corresponding with the 21st of November 1798, Raja Gopal Singh granted to Roghunath Singh, the father of the appellant Ram Lall Singh, a patta in the terms following:
4. I have acquainted myself with the contents of this.
5. The stipulation of patta granted, on receipt of kubulyat, to Roghunath Singh, mokurari ijardar of Mouza Balwani, appertaining to Pargana Gedhour, in the Sircar and province of Behar, on behalf of Raja Gopal Singh, is to the effect and purport following:
6. Whereas the mokurari ijara patta of the said mouza is granted from 1206 F.S., at a consolidated jama specified below, inclusive of malikana subject to no objection or excuses on the score of calamities of weather together with fisheries and fruit trees; with the exception of abkari and toddy gunjas bazaars, hats, all sayer, mothurfa (taxes levied on professions), lakheraj lands, covered by sanads and not covered by sanads, rosum of rosumdars, daily allowances of rozanadars and chandas of chandadars; the above-named person should, with case of mind, make cultivation and improvement, pay the above amount year after year, crop season after crop season, instalment after instalment, as per kistbandi, in full, into the treasury of this Sircar (raj), raise no objection whatever on the score of drought, inundation, hailstorms, deaths and desertions, but himself bear the losses arising therefrom. In addition to the above jama, whatever profits may be derived from salutary improvement in cultivation by him shall belong to the mokuraridar, the Sircar having nothing to do with the same. In case of non-payment of instalments agreeably to the kistbandi, month after month, the mutsuddis of the Sircar shall have authority to realize the arrears by sale of the goods and chattels of the abovenamed, to send a sazawal or attaching officer to the said village, and make and receive the collections. The expenses of entertaining sazawal, tehsildar, and others shall be borne by the abovenamed. He should keep the tenants of the said village satisfied and contented by his good treatment, and make collections from the tenants according to order of Government, agreeably to pattas of nakdi and bhaoli lands to be granted to them, and never demand any sum in excess. He should not in any way commit oppression upon tenants, so that they may be able to stand to their engagements, and he should not oust them until the determination of their leases. He should grant receipts to the tenants upon payment of rent, instalment after instalment. He should not give a single span of land in the said village without asking permission, and without consent of the huzoor, nor resume any previously granted without the orders of the huzoor. Should the said lakheraj lands be hereafter resumed under orders of the huzoor, and the huzoor be pleased to make a settlement of the rent thereof with the ticca mokuraridars, then the abovenamed shall pay the rent thereof according to the settlement to be made by the huzoor. He should not suffer a single span of the land on the limits and boundaries to pass and to be included in the boundary of others. Should it so happen, he should of his own accord inform the Sircar of it, have the matter settled with the aid of the Sircar, and maintain and preserve the boundaries and limits of the said mouza. He should not allow thieves and padders to settle within the estate leased to him. God forbid should anybody's property be robbed and plundered, he should trace out the thieves and robbers with the property, and produce them before the thanadar or the district authority. Should the thanadar apprehend the robbers and apply to him for aid, he shall forthwith afford assistance to him. He should bring without fail to the notice of the huzoor whatever property may be found belonging to dead persons, or that is deserted or lying buried under ground, without heirs to claim it. He should act in strict conformity with the orders already passed or to be hereafter passed by the huzoor for regulating settlement of rent with tenants and malgulzars of all classes, and should never raise any excuse or objection whatsoever. He, should not demur or put forward any excuse in this, and. should act up to the above.
7. Rent for four years to be paid without any objection or excuse, Rs. 24.
For 1206 Fasli ... ... 6
' 1207 ' ... ... 6
' 1208 ' ... ... 6
' 1209 ' ... ... 6
Uniform rent form 1210 Fasli to be paid year after year, crop season after crop season, without any objection or excuse, sicca Rs. 25 current in the province.
One-half of which is Rs. 12-8.
Dated 28th Kartick 1206 Fasli.
8. Roghunath Singh executed a corresponding kabuliat bearing the same date.
9. The other appellants are the representatives of the defendants in the suit, who derived their title from Roghunath Singh and denied the plaintiff's title; and no question is raised in this appeal as to their derivative title, nor as to Raja Bharat Singh not having joined in the patta.
10. On the death of Raja Gopal Singh, in or about October 1812, his son Raja Jaswant Singh declined to receive the rent of Mouza Balwani, alleging that his father had taken possession thereof at the end of the year 1219 Fasli under Reg. VII of 1799, and that a fresh patta had been granted to Roghunath Singh for eleven years from 1220 Fasli, at the yearly rent of Rs. 51. Thereupon summary proceedings were taken by Roghunath Singh to compel the Raja to receive his rent at the old rate, the result of which was that Jaswant Singh was referred to a regular suit if he desired to substantiate his allegation.
11. On the 13th of February 1821, Raja Nawab Singh, the younger brother and successor of Jeswant Singh, who had died in the previous year, brought a suit in the Court of the Registrar of Monghyr against Roghunath Singh and his surety, to recover the rents then due for Mouza Balwani under the alleged lease for eleven years. In his answer, Roghunath Singh asserted that he held under the patta of 1798, and denied the eleven years' lease. And the District Judge, by a decree, made on the 9th of January 1826, on appeal from the decision of the Registrar, directed that Roghunath Singh should remain in possession in accordance with the patta of 1798, and pay the rent therein reserved.
12. In 1869, the respondent succeeded to the zamindari, and on the 24th of July 1875, Roghunath Singh died. This suit was brought on the 22nd of August 1876, and the only question in the appeal before their Lordships is whether the patta is a lease for life or in perpetuity.
13. Their Lordships were referred by the learned Counsel for the respondent to several cases in the late Sudder Court, in which it was ruled that a lease at a fixed rent without more did not import perpetuity, and that to create a perpetual lease the addition of the words from generation to generation,' or other words importing perpetuity, were necessary.
14. On the other hand it was held by the High Court at Calcutta, in a case of ghatwali tenure, where the words 'mokurari istemrari' were used, that the holding was perpetual Munorunjun Singh v. Leelanund Singh 3 W.R. 84 and Raja Leelanund Singh v. Thakoor Munorunjun Singh 5 W.R. 101. But this Committee, on an appeal from that decision, held, that these words might mean either permanent during the life of the person to whom the grant was made, or permanent as regards hereditary descents 13 B.L.R., 124.
15. In the present case the word 'istemrari' is not used. The instrument is called 'the mokurari ijara patta,' and their Lordships in the case of the Bengal Government v. Nawab Jafir Hossein Khan 5 Moore's I.A. 467 at p. 498 stated their opinion to be, that though 'mokurari' might import perpetuity, that was not the necessary meaning of the word.
16. The question then is, whether the intention of the parties is shown by the other terms of the instrument, the circumstances under which it was made, or the subsequent conduct of the parties, with sufficient certainty, to enable the Courts, in the absence of words importing perpetuity, to pronounce that the grant was perpetual? The Subordinate Judge held, that the patta was intended to be hereditary, because it appeared that the mouza was covered with jungle when the mokurari was granted, and that it had since been brought under cultivation through the exertions and labour of the original mokuraridar and his representatives, and therefore it might, 'consistently with the principles of equity, be presumed that the lessor and lessee must have thought at the time that the lease in question should be granted in perpetuity, because it is void of reason to suppose that the lessee should have taken the lease for his life, and brought it under cultivation at heavy expense and through great exertion.' As to the subsequent conduct of the parties he said, that 'if the representatives of Gopal Singh had considered the lease as one for life, they would have never adopted such steps as were incompatible with their position and dignity to cancel such life-interest as was thought by themselves to last only for a few days, and Roghunath Singh himself would not have described the mokurari as a permanent one.' Their Lordships are unable to see the force of this observation; but it appears from it that the Subordinate Judge did not fail to consider everything that he thought might show the intention of the parties. It is, therefore, to be remarked that he did not refer to any of the provisions in the patta or of the words used to express them. Apparently he thought they did not show any intention that the patta was to be perpetual.
17. The High Court agreed with the Subordinate Judge that the lease was granted with a view to the improvement of the mouza, but thought that this did not show it was intended to be hereditary, and referred to some of the provisions which they said seemed necessarily to imply that a substantial interest in the property remained in the Raja, and were quite inconsistent with his having permanently parted with that interest. Their Lordships do not concur in all the views taken by the High Court of these provisions, but on the other hand they do not find in them sufficient to show an intention that the lease should be permanent. They are consistent with either intention.
18. A case in the High Court at Calcutta, printed in the Record, was referred to by the learned Counsel for the appellants, in which Mr. Justice Mitter, J. said,--'We do not find it usual that tenants taking upon themselves the trouble and outlay for clearing and reclaiming jungle lands are contented with anything short of hereditary interest in them.' But the judgments of the learned Judge and the lower Court are expressly stated to be founded upon the fair construction of the terms of the grants, and the surrounding circumstances attendant on the execution of them, as well as the conduct of the plaintiff in connection with that and similar other tenures in his zamindari. The learned Judge only refers to what is usual as a circumstance which supports his view.
19. Their Lordships would repeat what was said by this Committee in Dhunput Singh v. Gooman Singh 11 Moore's I.A. 465 where it was proved that the hereditary character of the patta had been recognized by the successive zamindars. 'If, on the one hand, it is improbable that the grantee should undertake such an obligation without some fixity of tenure and some assured and permanent interest in the lands, it is, on the other hand, equally improbable that the grantor should part for ever with all his interest in the improveable value of the lands.'
20. As the appellant is unable to point to any words in the patta importing perpetuity, it appears to their Lordships, upon a consideration of the object of the patta and its language and provisions, as well as the surrounding circumstances, that the intention to grant a perpetual lease does not sufficiently appear; and they are, therefore, unable to say that the decision of the High Court is not the right one. They will, therefore, humbly advise Her Majesty to dismiss the appeal, and the costs thereof will be paid by the appellants.