1. These five appeals arise out of five suits which were heard together in the first Court. These appeals from those decisions were also heard together in the lower Appellate Court. The plaintiff-respondent in these appeals is the transferree of Sherjan Khan who purchased an estate at a sale for arrears of revenue under Act XI of 1859 on the 4th May 1908. The plaintiff brought these suits to recover khas possession with mesne profits of the lands held by the different principal defendants in each suit as tenure-holders under the proprietor whose interest was sold at the revenue sale. All the suits were dismissed by the Munsif who tried them. On appeal these decisions were reversed and the suits decreed. Against these decrees the principal defendants have preferred these appeals to this Court.
2. At the hearing of these appeals before us only three points were urged
(1) That the defendants are occupancy raiyats and, therefore, not liable to be ejected from their holdings.
(2) That if they are tenure-holders they are protected under the record exception to Section 37 Act XI of 1859.
(3) That the mesne profits claimed for the period before the plaintiff's purchase on the 14th November 1919 are not recoverable by the plaintiff.
3. On the first point the Record of Rights is against the appellants and both the lower Courts held that the presumption arising in the plaintiff's favour from the entries therein had not been rebutted. The appellants claim to be raiyats and not tenure-holders depended on their being able to prove descent from the persons who were recorded as cultivating the land at the time of the Maghi Survey. The finding that they could not prove this descent is one of fact which we must accept in second appeal.
4. On the second point it is contended that the defendants' tenures have been in existence since the time of settlement of the estate purchased by the plaintiff. The Munsif held that the estate was settled in 1845 and from the fact that the tenures were in existence in 1890 has presumed that the tenures were in existence at the time of the settlement. The learned Subordinate Judge has refused to draw this presumption. The presumption as to the existence of the tenancy in 1845 is a presumption of fact. We cannot hold that the lower Appellate Court committed any error in law in refusing to draw this presumption. The rulings that have been cited on behalf of the appellants at most show that a Court of fact might have drawn this presumption but are no authority for holding that it was bound to do so.
5. The last point urged is based on the contention that Section 6(e) of the Transfer of Property Act bars the transfer of the right, to mesne profits by the auction-purchaser to the plaintiff. Reliance is placed oh a decision of this Court in Durga Chandra Roy v. Koilas Chandra 2 C.W.N. 43 and of the Madras High Court in Seetamma v. Venkataramanayya 21 Ind. Cas. 387 : 38 M. 308 : 14 M.L.T. 319 : 25 M.L.J. 410 : (1913) M.W.N. 918. The former case might be distinguished on two grounds that what had been transferred to the plaintiff was a bare right to recover mesne profits. The plaintiff in the present case as transferee of the estate with the right to mesne profits is in a way in the strongest position. But we think that the argument advanced by the learned Vakil for the plaintiff-respondent is sound. The decision of this Court in Ramratan Kapali v. Aswini Kumar Dutt 6 Ind. Cas. 69 : 37 C. 559 : 11 C.L.J. 503 : 14 C.W.N. 849, supports his contention that the mesne profits claimed by the plaintiff in the present suits are not, as they usually are, damages recoverable from a trespasser. The defendants' tenures were not annulled until the plaintiff or his predecessor the auction-purchaser exercised his option to annul them and this was not done until the institution of the present suits. The defendants were, therefore, not trespassers but tenants until the institution of the suits and the mesne, profits recoverable will be limited to the amounts of rent payable by them as tenure-holders. Section 6(e) of the Transfer of Property Act is no bar to the transfer of an estate with the right to rent due to the owner of the estate.
6. The appeals, therefore, fail and are dismissed. In those appeals in which the respondent appeared he will get his costs.