1. The suit out of which this appeal has arisen, was for ejectment of an under-raiyat, according to the terms of a registered lease executed by him (the under-raiyat) on 15th Agrahayan 1324 B.E. The defence of the under-raiyat was that be had acquired right of occupancy by custom, and was not liable to be ejected. The right of occupancy claimed by the under-raiyat was recorded in the settlement records, as finally published. The controversy in the case before the lower Courts appears to have centered round the question whether the terms of the contract evidenced by the registered lease could bar the operation of the local custom, in the matter of acquisition of occupancy right, as claimed by the under-raiyat. The trial Court answered the question in the negative, and in that view of the case, held that the defendants could not be ejected from the lands in suit, in which he had acquired right of occupancy by custom. On appeal by the plaintiff, the decision arrived at by the Court of First Instance was reversed. According to the learned Subordinate Judge in the Court of appeal below, the settlement record had been rebutted and the defendants were held not to have acquired a right of occupancy by local custom; a decree was therefore passed by the lower appellate Court, entitling the plaintiff to get khas possession of the lands in suit. The Court of appeal below based its decision on the decision of the Court in the case of Mohammad Ayejuddin v. Prodyat Kumar Tagore AIR 1921 Cal 741, in which it was held in the case of a tenure, that an agreement where the tenancy was non-transferable in express words, no evidence could be given of the customary transferability of tenures in the locality; deducing from the said decision that evidence of custom in respect of a tenancy was inadmissible where the custom alleged was contradictory to the terms of a written agreement. No exception can, to my mind, be taken to the view expressed by this Court in the decision referred to above, and which is in consonance with the observations of Story, J., in The Schooner Beside 2 Sumn 567, which are quoted in the treatises on the Law of Evidence, whore the very eminent; Judge said:
But I apprehend that it can never be proper to resort to any usage or custom to control or vary positive stipulations in a written contract, and a fortiori not in order to contradict the same. An express contract of the parties is always admissible to supersede or vary or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by local custom; for that would not only be to admit parol evidence to control, vary or contradict written contracts, but it would be to allow more presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary or contradict, the most formal and deliberate declarations of the parties.
2. In the case before us, the position is that there is the entry in the finally published record of rights, showing that the defendant, an under-raiyat, had acquired right of occupancy in the lands in his possession, by custom prevalent in the locality; the statutory presumption attaching to this entry had to be rebutted by the plaintiff in the suit; and the way in which he sought to rebut the presumption was by the contract between the parties, as evidenced by the registered lease, by which the tenant defendant in the suit acknowledged the plaintiff-landlord's right to ejectment, after the expiration of the lease in 1332 B.E. In my judgment, the question in the present case is not whether evidence of custom was admissible where the custom alleged was contradictory to the terms of a written contract, nor also whether the contract was inconsistent with the growth of custom as propounded by the lower appellate Court; nor is the real question for consideration in the case, whether the contract contained in the written lease could bar the operation of local custom, as stated by the trial Court. The question is, could the tenant, as an under-raiyat, with a right of occupancy acquired by custom, contract himself out of his right so acquired. The learned Advocate for the defendants-appellants, the successors-in-interest of the original tenant defendant in the suit, has placed reliance on the decision of this Court in the case of Abdul Hamid v. Eakub All Pandit : AIR1930Cal315 , in which it was held that where an under-raiyat was recorded in the record of rights as having a right of occupancy, it must be presumed that right of occupancy has been acquired by him by virtue, of a custom: it is for the, plaintiff in a suit for ejectment to show that an entry to that effect in the record of rights is wrong.
3. The proposition as laid down in the above decision must be accepted as a correct proposition of law; but it does not deal with the question requiring consideration in this case. The question still remains whether the written contract as evidenced by the registered lease executed by the tenant relating to ejectment could rebut the presumption in favour of the tenant as to his having acquired a right of occupancy, which precluded the landlord from seeking ejectment. The question thus arising for consideration, as has been mentioned already, was whether the tenant could contract himself out of his right as an occupancy raiyat; could the plaintiff landlord insist upon his right to eject the tenant by virtue of a contract which does away with the right of occupancy acquired by the tenant. This leads us to the consideration of the operation of the statutory provisions contained in the Bengal Tenancy Act, if any, bearing upon the subject. In Section 178 of the Act, it is expressly provided that nothing in any contract between a landlord and a tenant shall take away an occupancy right in existence at the date of the contract. So far as the case before us is concerned, upon the settlement records, the tenant had acquired a right of occupancy; could that right, which must be treated as a right in existence, be taken away by any contract between a landlord and a tenant As the provision of the law stands, the contract would be wholly inoperative in the matter of the landlord's right to eject the tenant on the land in suit, if the word 'tenant' used in Section 178, Bengal Tenancy Act, includes an under-raiyat.
4. The word 'tenant' has been defined in the Act; it means a parson who holds lands under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person, The definition, as it stands, does not exclude an under-raiyat. In addition of the definition of the word tenant' there is, in the Bengal Tenancy Act, a Chapter dealing with the 'classes of Tenants', coming within the purview of the Act; and in Section 4 contained in that Chapter, the classes of tenants have been enumerated. In Section 4(3) under-raiyats, that is to say, tenants holding whether immediately or mediately under raiyats, are classed as tenants. The Bengal Tenancy Act therefore specifically keeps the under-raiyats within the operation of that Act, and in that view of the matter, Section 178(c) to which reference has already been made, is a positive provision contained in the statute, which negatives the plaintiff's case, so far as his claim for ejectment, as made in the suit was concerned; if the occupancy right was in existence at the date of the contract evidenced by the lease on which the plaintiff bases his claim for ejectment, the contract could not, under the law, take away the occupancy right of the tenant if it were in existence at the date of the contract in 1324 B.E. The Courts below have not come to any finding on the question as to when the defendants' right of occupancy came into existence: the entry in the record of rights cannot help the defendants for determining that question, inasmuch as the entry was made some time after the lease was executed by the tenant, in the year 1324 B.E.
5. In my judgment therefore the case hag to be sent back to the Court of appeal below, for the purpose of determination of the question as to whether the right of occupancy claimed by the tenant, and as recorded in the record of rights, came into existence before the year 1324 B.E. If the tenant had acquired right of occupancy before the year 1324 B.E., that right could not be taken away by the registered lease executed in favour of the landlord in that year, and the landlord's claim for ejectment could not succeed. In the result, the appeal is allowed, and the case is remitted to the Court of appeal below, for a rehearing of the appeal before it, in the light of this judgment, on the materials on the record, and on further materials, consisting of documentary and oral evidence, as may be placed before the Court by the parties, in support of their respective cases. The costs in the litigation up to the present stage, including the costs in this appeal, are to abide result on remand. Future costs are to be awarded according to the discretion of the Court below.