1. These two appeals arise out of an action in ejectment brought by certain patnidars in respect of seven plots of land alleged to be situate in their putni. For present purposes the defendants may be said to be, first, the Sanyals, who are admittedly the holders of a permanent tenure in the patni described in the judgments of the Courts below as a jama held in kaimi raiyati or kaimi jote right, and, secondly, the actual cultivators, who have been inducted by the Sanyals and are in occupation of some of the plots as the latters' tenants. Both the lower Courts have dismissed the suit as regards plots 3, 4, part of 5, and 7. As regards the remainder, the appellate decree is to the effect, that, as the Sanyals havefailed to prove that these lands are included in their under-tenure, the suit should be decreed against them; but that the actual cultivators are entitled to remain in occupation as tenants of the plaintiffs, and the suit should be dismissed in so far as they are concerned. Against this decree the plaintiff patnidars have preferred S.A. No. 1971 of 1908; while S.A. No. 2550 of the same year is on behalf of two of the defendant Sanyals, who object to the finding that they have no right to intervene as rent-receivers between the cultivators and the patnidars.
2. I take op first the appeal of the patnidars, whose main contention is that the tenants inducted by the Sanyals, found by both Courts to have been trespassers in respect of plots 1, 2, part of 5 and 6, should themselves be evicted as trespassers. The ruling of the Full Bench of this Court in Binode Lal Pakrashi v. Kalu Pramanick 20 C. 708 is of course, relied upon by the other side ; but it is urged that that ruling ought not to be extended to a case such as this.
3. No doubt, the Full Bench decision referred to, introducing, as it did, an exception to the general rule of law that no one can confer on another any right which is not his, should be carefully limited, and I think it clear that it ought not to be applied where there is shown to have been an absence of good faith on the part of either the trespasser or the person inducted by the trespasser. In this connection, I need not do more than refer to Peary Mohan Mondal v. Radhika Mohan 8 C.W.N. 315 at p. 319 affirmed on appeal in 1904--See Peary Mohan Mondal v. Radhika Mohan 5 C.L.J. 9 and Upendra Narain Bhattacharya v. Protab Chandra Pardhan 8 C.W.N. 320 at p. 321. In Binode Lal Pakrashi's case 20 C. 708 there was, so far as I can see, no trace of mala fides anywhere: the possession of the trespassers had been maintained by a Criminal Court in a proceeding under Section 145 of the Code of Criminal Procedure, and it was never suggested that their tenants had acted otherwise than honestly. Similarly, in Mohima Chandra Shaha v. Hazari Pramanik 17 C. 45 the decision in which was the subject of the reference to, and was affirmed by the Full Bench in Binode Lal Pakrashi's case 20 C. 708 the defendants tenants bad been let into occupation by the Collector before the plaintiff's success in proving, in a suit against the Government, that the land was a reformation on the site of their original estate.
4. But in the case before me now no imputation of bad faith is cast upon the cultivators inducted by the Sanyals, and the only foundation for any such imputation against the Sanyals is the remark in the judgment of the learned Munsif that 'the Sanyal defendants are trying to include some more land in their admitted holding.' This, in my opinion, is not sufficient. The question raised by the pleadings was one of parcel or no parcel, the Sanyals (who admittedly held an under-tenure in the patni) asserting that these plots were included in their under-tenure: but it does not follow from their failure to discharge the burden of proof resting on them that their claim was a dishonest one; and dishonesty is surely not to be presumed. As they had failed, it was quite correct on the part of the first Court to say that they were trying to include some more land.' But I cannot read this remark as tantamount to the finding that they knew that what they were claiming was no part of their under-tenure. On the contrary, the findings of fact point in the opposite direction: for it appears that the Sanyals have been in possession or these parcels 'for many years' without paying any additional rent for them to the patnidars; that their tenants have, as such, been holding them 'for along time;' and that a dispute regarding them had led, in 1903, to a proceeding under Chapter XII of the Code of Criminal Procedure and an order of attachment under Section 146. In these circumstances, I am disposed to think that the case may well be held to be within the scope of the Full Bench ruling, that the defendants in actual occupation are, therefore, raiyats within the meaning of the Bengal Tenancy Act, 1885, and that they have most justly been left undisturbed as tenants liable to pay rent to the plaintiffs.
5. It is next contended on behalf of the patnidars that the judgment of the lower Appellate Court amounts to nothing beyond an expression of concurrence with the finding of the Court of first instance, and can, therefore, hardly be called a judgment at all. A remand is, consequently, suggested as necessary. As to this, I find, that although the Subordinate Judge has disposed of much of the case by referring to the 'detailed reasons' given by the first Court, he has added the remark that the plaintiff's Pleader 'could scarcely assail, with any show of reason, any of the findings of the learned Munsif,' and he has gone on to discuss what he has described as 'the only point he (the Pleader) had made out.' Where the Court below has delivered a good judgment, it may be difficult, if not impossible, for the Appellate Court to support it with independent reasons; and, in such a case there is nothing to be gained by mere repetition or paraphrase. There must, of course, be at least enough in the Appellate judgment to show that the Court of Appeal has really applied its mind to the case and formed an opinion of its own on the points arising in it: but that is the only rule that I can venture to lay down on the subject. In this case, having read both judgments, I am satisfied that the learned Subordinate Judge has dealt with the appeal with intelligence; and I think that his judgment fulfills the requirements of the rule I have indicated above.
6. Then it is urged, with special reference to plot 3, first, that the judgment of the lower Appellate Court is unintelligible, and, secondly, that both Courts were wrong in refusing to order a local investigation, as prayed for by the plaintiffs.
7. As to former complaint, the passage attacked reads as follows: 'On the first point i.e., the point whether plot 3 formed a portion of the plaintiff's estate) it would appear from the deposition of the plaintiff's gomasta that the zemindar Khirod Govinda examined by the defendants, has not a portion in Chota Salika Mauza in question. As stated by the learned Munsif in detail, the plaintiff's evidence is not sufficient to find that this plot 3 is comprised in his Saham of portion of the Mauza.
8. The words, as committed to paper, are certainly open to the criticism passed upon them,--so much so, indeed as to raise the suspicion that there must be something wrong. And a reference to the deposition alluded to at once makes it clear that the Judge intended to say 'got' when he wrote 'not.' The whole then becomes quite intelligible, and no fault can be found with it.
9. As to the local investigation, it appears that the suit was instituted on the 28th April 1906, the issues were settled on the 21st November 1906, and after several adjournments, the case was set down for the 11th May 1907, when an application for a local investigation was, for the first time, made. Now, the mere fact that the case was not ready for final hearing on that day, and was, as a matter of fact, not disposed of till the 12th August following, does not make the Munsif's refusal on the ground that the application had been 'filed at too late a stage' such an arbitrary exercise of discretion as can properly be interfered with on second appeal. I must, it seems to me, look at the matter as it stood and presented itself to the Munsif on the 11th May 1907, and not in the light of what subsequently happened; and, so regarding it, I am quite unable to hold that the Munsif was acting at all arbitrarily.
10. There remains the Sanyals' appeal. The argument on their behalf is that the first Court, having found that they have been in possession of some of the parcels 'for a long time ought to have gone further and found how long precisely they had held possession, and whether they had not thereby acquired a title to be left undisturbed on the principle explained in Ishan Chandra Mitter v. Raja Ram Ranjan Chakrabutty 2 C.L.J. 125. The short answer to this is that the Sanyals set up no such case and the learned Munsif would have been in error had he made it for them.
11. The result is that each of these appeals must be dismissed with, costs.