1. This is an appeal by the plaintiffs from a decision of the learned Additional District Judge of the 24-Pergannahs, dated the 21st April 1914, reversing the decision of the Munsif of the first Court at Baruipore. The suit was brought by the plaintiffs to recover possession of 4 bighas 9 cottas of land, part of a holding of 21 bighas 21 cottas. The first Court decreed the plaintiffs' suit. On appeal to the learned Additional District Judge, the decision of the first Court has been reversed and the plaintiffs have appealed to this Court. The plaintiffs claimed title under an usufructuary mortgage or one by way of conditional sale in respect of a portion of this holding of 21 bighas odd, and they alleged that they had been dispossessed by the principal defendant who had purchased the holding in execution of a rent-decree and that no notice to annul the plaintiffs' encumbrance had been given under the provisions of Section 167 of the Bengal Tenancy Act. The first Court held that the person through whom the plaintiffs claimed title, namely, the original holder who granted the usufructuary mortgage to the plaintiffs was a raiyat holding at a fixed rate of rent or, if he was not so, then the interest of the plaintiffs was an encumbrance within the meaning of the Bengal Tenancy Act and must be annulled. The second Court held that the evidence did not establish that the tenancy was a permanent one, that the interest was that of an occupancy raiyat and that, therefore, the plaintiffs had no interest as against the landlord or the person claiming under a rent-decree and the interest, although it might have been good as against the original tenant, was not an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act.
2. The first point, I must confess, is not very clear. The plaintiffs in their pleadings set up the case that their mortgagor had a mokarari jama which, I understand, means land held at a permanent and fixed rent, and the written statement did not in direct terms traverse that. But the pleadings in these written statements in the mofussil, although, so far as I have seen them, they never admit anything and never fail to charge the other side with every sort of improper conduct that is possible to charge them with, certainly never have been given the strict construction that is placed upon the pleadings in England or in the original side of this Court. Order VIII, Rule 5, Code of Civil Procedure, no doubt states that every statement of fact in the plaint, if not derived specifically or by necessary implication, must be taken to be admitted except as against a person under disability; but this is subject to the proviso corresponding to the proviso in Section 58 of the Indian Evidence Act, that the Court may require proof of any fact taken to be admitted under the provisions of Order VIII, Rule 5, Code of Civil Procedure. In this case, the point not having been taken before, the Court must have required the interest of the plaintiffs to be proved, notwithstanding the failure of the defendant to specifically deny the statement that the plaintiffs' mortgagor held the property on a mokarari jama as mentioned in paragraph 1 of the plaint. If that is so, then I think that the finding of the learned Judge of the lower Appellate Court, that the interest that the plaintiffs' mortgagor had was that of an occupancy raiyat with no power of transfer, is a finding of fact depending on a consideration of the evidence with which we cannot interfere in the present appeal, unless we hold that the Judge has misapplied his mind to the presumption that arises under Section 50 of the Bengal Tenancy Act. I think that this point was clearly open to the Judge. The course that the case took in the Primary Court seems to me to be a sufficiently good guide on this point. Both parties argued before the learned Munsif as to the status of the mortgagor of the plaintiffs and the Munsif found in favour of the plaintiffs' contention. That decision has been reversed by the learned Judge of the lower Appellate Court.
3. Then the next point that has been urged against the finding of the learned District Judge is that he misapplied his mind to the evidence having regard to the construction to be placed under Section 50 of the Bengal Tenancy Act. The wording of the judgment is not very clear, but the Judge obviously considered the facts in this way. He says: 'It is clear to my mind on the documentary evidence that in 1243 this property was described as ticca land. No doubt 1243 is a good long time back but it is later than the date of the Permanent Settlement and it is quite clear that there was no permanent interest then in the land of the predecessor-in-title of the plaintiffs' mortgagor. I should, therefore, think that the presumption to be implied under Section 50 of the Bengal Tenancy Act by an uniform payment of rent for a period of more than twenty years is rebutted.' It is a method which a Judge who is a final Judge of fact is entitled to follow, when he considers the evidence along with the presumption which can be rebutted arising under the provisions of the Act. I think there are no grounds for us to interfere with the judgment of the learned Judge on this point.
4. The next point in dispute is that even assuming that the interest of the plaintiffs' mortgagor was that of an occupancy raiyat of a non-transferable holding, whether the interest of the plaintiffs was an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act. The interest that the plaintiffs had was not binding as against the landlord. It is quite true that, so long as the original tenant retained a portion of the holding, the landlord's right to re-enter could not be enforced on the ground that there had been no abandonment. But the interest being nontransferable, it is quite clear that the purported transfer to the plaintiffs could not affect the landlord and when the landlord came to enforce the right that the law gave him, namely, of bringing the holding itself to sale for arrears of rent, the interest created in favour of the plaintiffs could not be an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act. It was not an interest or right created by the tenant on his tenure or holding or in limitation of his own interest therein, but the interest of the plaintiffs as against their own mortgagor was an interest that took effect purely on the ground of estoppel. As against a person who was not either a party or privy to that estoppel, clearly the estoppel cannot have any effect. In that view, I think that the interest that the plaintiffs had was not an encumbrance under Section 161 of the Bengal Tenancy Act.
5. In the result, the present appeal fails and must be dismissed with costs.
6. I agree.