1. The suits were based on a sarbarakari patta in favour of the plaintiff, dated the 5th Assar 1292, (June 1885), and the plaintiff alleged that, in virtue of that pattah, a permanent intermediate tenure was created by the Zemindar between his proprietary right and the putni taluks of the tenant defendants, who were, therefore, bound to pay their rents to the plaintiff.
2. The defence was a denial of the creation of any permanent interest, and that the plaintiff having failed to carry out certain conditions of the sarbarakari pattah, the Zemindar defendant annulled the same and proceeded to collect rents directly from the putnidars.
3. The Court of first instance decreed the suits, and, among other things, held that the sarbarakari pattah created a contract of tenancy.
4. In appeal, the Subordinate Judge of Pubna and Bogra has entered judgment for the defendants. In the opinion of the Subordinate Judge, a Zemindar cannot create a permanent tenure intermediately between his estate and a putni taluk; secondly, the Zamindar defendant did not intend, by the sarbarakari pottah, to vest in the plaintiff any interest in land; and, thirdly, it has been found by the lower appellate Court that the plaintiff failed to perform certain services mentioned in the pattah for the Zemindar, and that, consequently, the arrangements made in the pattah come to an end.
5. On the opinion expressed by the Subordinate Judge that a Zemindar cannot create a permanent tenure intermediately between his estate and a patni taluk, various contentions may arise; but we do not think it necessary to discuss that question because, on a construction of the sarbarakari pottah in suit, we think that the arrangements made thereby did not create an interest in land, and, therefore, not a tenure within the meaning of the Bengal Tenancy Act.
6. We shall discuss the provisions of the pattah but, before so doing, we may refer to the provisions of the Rent Law defining the terms with which we are concerned.
7. Section 3(7) defines the word 'tenure' as being 'the interest of a tenure-holder or an tinder tenure-holder'.
8. Section 5(1) defines 'tenure-holder' as meaning primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents, and so forth.
9. It is clear, therefore, that if the pattah in favour of the plaintiff did not confer on her any interest in land, it did not create a tenure and, if it is not a tenure, the provisions of Section 65 of the Bengal Tenancy Act, will not fetter the Zemindar.
10. Now, the pattah recites and provides, in paragraph 19, that a sarbarakari jamai settlement, of certain patni mahals, had been taken from the Zemindar, by the plaintiff, at a certain annual rental. The Zemindar proceeds to say: 'I do hereby confer upon you all the powers I had to realise the rents, etc. payable by the patnidars of the said mahals under kabuliats given by them every six months under Regulation VIII of 1819 according to the law in force for realising arrears of rent. By virtue of those powers, you shall be competent to sue those patnidars in my behalf, and using my name, under Regulation VIII or any law that may be in force for the time being for realising arrears of rent, and realise the rents with cesses, dak tax, interest and costs. I have executed am mukhtarnama in favour of you and your agent upon your suretyship, lest your application against them under Regulation VIII be not accepted by the Collector, or on the ground of the pattahs granted by me to them (patnidars)'.
11. In the next paragraph, it is provided that, in default of the sarbarakar making payments of Government Revenue and producing dakhilas and chalan, 'I will be competent to pay into the collectorates the revenues payable by you within the said 8 days, and if I thus pay the sudder revenues within those 8 days this sarbarakari jama shall be cancelled and become null and void'.
12. In paragraph 21 power is reserved to bring a suit for arrears of rent in respect of the sarbarakari mahal, and, to a certain extent, this paragraph supports the contention now raised on behalf of the plaintiff.
13. The last paragraph of the pattah provides that 'for the performance of all acts and for compliance with all the terms and conditions of the patta, you and your heirs and representatives shall remain fully bound to me, my heirs and representatives'.
14. The conclusion at which we have arrived, on a reasonable construction of this pattah, is that the Zemindar merely made arrangements for the collection of rents, and payment of Land Revenue, by a person who had filled the position of sarbarakar in previous years.
15. The use of the word 'sarbarakar' in place of some familiar word connoting a devolution of the permanent interest of a tenure-holder can only be explained by the supposition, which we adopt, that the Zemindar did not create any interest in land, as that of a tenure-holder, in the plaintiff. What was intended to be created was a personal obligation between the Zemindar and the plaintiff, and the use of the fit words in paragraph 31, already attended to, bears out this construction, namely, you and your heirs and representatives shall remain fully bound to me, my heirs and representatives'. It was, in fact, an agreement between the parties, founded on a personal relation, and with the reservation in favour of the Zemindar to the extent specified in paragraphs 19 and 20 of the pattah The Zemindar conferred certain powers; his name had to be used in legal proceedings; and, to elucidate and fortify the position of the plaintiff, certain general powers-of-attorney were executed, in favour of him and his agent, for the better carrying out of the arrangements whereby rents were collected, and, after deduction of a certain profit, the balance was paid to the Zemindar.
16. No argument can be safely based on the analogy of the Sarbarakari tenures which prevail in Orissa.
17. This being our construction of the pattah, and the finding being that the Zemindar, on failure of the plaintiff to perform the services mentioned, has withdrawn the powers conferred by the pattah, we think these suits cannot possibly proceed. The judgment of the lower appellate Court must be sustained with costs.
18. Although we do not think it necessary to express any definite opinion on the first question, namely, whether a Zemindar can create a permanent tenure intermediately between his estate and a putni taluk, no authority having been cited to us, we may say on a reading of Regulation VIII of 1819 that our inclination is to answer that question in the negative, that is to say, a Zemindar cannot lawfully create a permanent tenure between his own interest and a putni taluk of the first degree.
19. The appeals are dismissed. There will be two sets of costs for the two sets of defendants--the Zemindar and the patnidar.