1. This is an appeal under Section 15, Letters Patent, by one of the plaintiffs in a suit which was brought for confirmation of possession on declaration of title of plaintiffs' 9 annas 10 gandas share in Mouza Haria and others and for declaration that there is no 'jibka' tenure under the name of Ram Narayan Chakraburty under them and that the Record of Rights showing the existence of such a tenure is incorrect. The Courts below and the learned Judge of this Court have confirmed the proprietary title of the plaintiffs to the 9 annas 10 gandas share in the said mouzahs, but have dismissed the plaintiffs' suit in so far as they seek for a declaration that the jibka tenure is not in existence and that the Record of Rights showing the existence of a jibka tenure as a permanent rent-free tenure is wrong. It is against this portion of the decree dismissing the plaintiffs' suit that the present appeal has been directed and is brought against the decision of Jack, J., under Section 15, Letters Patent. The defendants in their defence set forth a compromise decree in a suit of the year 1880 and they have founded their claim to this tenure on that compromise decree. They also raised the questions of adverse possession and limitation. The Courts below have concurrently found that the plaintiffs have not been in possession within 12 years of the suit. It is also significant that the final publication of the Record of Rights took place on 18th April 1916 and the present suit in which this appeal under the Letters Patent arises was not brought till very near the time when 12 years expired, i.e., on 3rd April 1928.
2. Several contentions have been raised before us with reference to the decision of Jack, J. It is said that the solenama in the compromise decree in the suit of 1880 was not admissible in evidence, seeing that by the solenama a lease was purported to be created as the decree was not registered and as no registered lease was forthcoming under the provision of Section 17, Registration Act, the solenama was not admissible in evidence. Jack, J. in one part of his judgment was inclined to the opinion that the solenama on its proper construction was really intended to operate as a lease in favour of the plaintiffs' (plaintiffs in the suit of 1830 and the defendants in the present suit) predecessors and that therefore it required registration and not being registered was not admissible in evidence as a lease. But after recording this opinion, the learned Judge proceeded to say that although this document does not come under the definition of 'lease' in the Registration Act so as to bring it also under Clause (d), Sub-section (1), Section 17 of the Act, he was of opinion that this document was admissible in evidence without registration under Section 17(1)(b), Registration Act, and in support of this view reliance was placed on the authority of the decision in Sarat Chandra Das v. Sarojini Rudraja 1924 Cal 135.
3. We have read the solenama and we are of opinion that the document as created in favour of the predecessors-in-interest of the defendants in the present suit was a lease. The word 'lease' has been defined in the Transfer of Property Act of 1882, but the solenama was prior to that date and no definition of the word lease' is found in the Registration Act. We have therefore to fall back upon what was understood to be the meaning of 'lease' prior to the enactment of the Transfer of Property Act. According to Stroud's Judicial Dictionary, if the owner of land, consents by deed that another person shall occupy the land for a certain time, that is a lease; and reference is made to the decision of Bayley, J., in Germains v. William, 2 B & C 220. We are therefore of opinion that the decree created a lease and the solenama operated as a present demise in favour of the defendants, and not being registered is not admissible in evidence. This contention must therefore succeed.
4. The question next arises as to whether the plaintiffs' suit in so far as they seek for a declaration that there is no jibka tenure should not fail on the ground that the defendants have been asserting a right to a permanent tenure for more than 12 years before the institution of the suit. In the written statement which has been read to us, there is a plea of adverse possession for more than the statutory period; if this document stands out of the way, the possession of Ram Narayan and of those who have succeeded to his interest or of persons who have got the tenure under the will would be adverse to the present plaintiffs. They might have set up adverse possession of the fullest extent which would have been sufficient to defeat their suit. But they as a matter of fact have set up adverse possession of a limited character. It appears from the proceedings with reference to the partition of estate within which the lands in suit are situate that Ram Narayan did set up in the years 1906-1907 a niskar jibka tenure right. The Record of Rights which was published in 1916 described the tenure of the defendants as 'chirasthayee' or a permanent tenure. The burden of proof therefore lies on the plaintiffs to establish that the Record of Rights is wrong, having regard to the presumption of correctness of the said entry, which arises under Section 103-B, Ben. Ten. Act. A question arises as to what evidence the plaintiffs have given to displace the presumption which arises under the Act.
5. It is said on behalf of the appellant that the use of the expression 'jibka tenure' is sufficient to show that the grant was a maintenance grant and which is prima facie resumable on the death of either of the grantor or the grantee it was resumable and after the death of Ram Narain the grant might have been resumed. The meaning of the expression 'jibka,' for aught one knows, is equivocal, for all maintenance grants are not necessarily limited to the grantee's life-time. In this particular case, the very important fact that after the death of Ram Narayan which happened in January 1908, possession of the land continued with his son-in-law who had succeeded to the tenure under a will and by the transferees from the son-in-law shows that the grant, if any, was of a permanent character, or at any rate the fact that they were asserting their possession after the death of Ram Narayan is consistent with the supposition that the grant was not intended to be limited to the life time of the grantee, proceeding on the assumption that there was such a grant. Moreover there was no word used in the lease limiting the grant. In this view we are of opinion that the plaintiffs have failed to displace the presumption which arises in favour of the defendants from the Record of Rights. The other questions raised in support of the appeal are not necessary to be considered in view of the fact that we are resting our decision on the adverse possession of a limited interest for more than 12 years. The result is that the appeal fails and is dismissed with costs.