Lancelot Sanderson, C.J.
1. (March, 15th 1917.)--This was a suit brought by the plaintiff asking that it might be adjudicated that the disputed lands formed part of the guzasta lands of the plaintiff, that after the death of the plaintiff's mother and after the expiry of the term of the pattah granted by her the plaintiff was entitled to possession, and also asking for a declaration that the proceedings taken at the time of revision of the Settlement were not binding on the plaintiff, that the plaintiff was no party to the same and that the said proceedings were ultra vires and illegal.
2. The plaintiff claimed to hold the lands as an occupancy-raiyat, the land consisting of some 25 bighas. The plaintiff's mother appears to have given a tease of the land for seven years and the mother died before the expiry of the lease. The lease was granted to the first defendant, whose name was Ram Naresh Ojha. The plaintiff alleged that finding Ram Naresh Ojha in possession on her mother's death she allowed him to remain in possession of the land until the termination of the period for which the lease had originally been granted.
3. The defendants in this case consist of 26 persons, and they may be divided into six groups. The first group consisting of defendants Nos. 1 to 6 was constituted by the family of Ram Naresh; the other 20 may be divided into five groups, all the people being connected in some way or other by relationship with the first group, defendants Nos. 1 to 6. It appears that the 26 defendants had succeeded in getting their names recorded in the Record of Rights as being in possession of the, 25 bighas and as kaasht fears and also in having the record made to the effect that the plaintiff was a tenure-holder.
4. The plaintiff alleged that this record was not binding upon her, that it had been made in collusion with the husband of the plaintiff who was a man not capable of understanding business.
5. Defendants Nos. 1 to 6 set up the defence that they were not in possession of the 25 bighas but that they were in possession of 5 bighas only; that they had entered into possession of these 5 bighas not under the lease to which I have referred but that these 5 bighas were part of the ancestral property of defendants Nos. 1 to 6; that it was not part of the guzasta land of the plaintiff but that it was part of the mourusi guzasta land of these defendants: that the plaintiff was in truth and fact a tenure-holder; and, they further alleged that they, defendants Nos. 1 to 6, had many lands in the Mouzah in question having transferable right; that they were settled raiyats in the Monzah and that consequently these defendants had acquired an occupancy and guzsastadari right.
6. The other defendants set up similar defences with regard to the other 20 bighas. It was alleged that these 20 bighas were split up into five plots of 4 bighas each. Just in the same way as the first group of defendants had alleged, they alleged that they had not come into possession of these lands under the pattah or under the first group of defendants Nos. 1 to 6, but that these 20 bighas were part of the ancestral lands of these defendants Nos. 7 to 26; that the plaintiff was a tenure-holder; and that these lands were part of the guzasta lands of the defendants.
7. The issues which are material to this appeal were the third and fourth issues as stated in the judgment of the learned District Judge. The third issun was, what was, the status of the plaintiff in the disputed lands; and, the fourth was, what was the status of the defendants in the same.
8. As regards defendants Nos. 1 to 6, their case, as I have stated, was that 5 bighas of the 25 bighas were held by them under their ancient raiyati title; and they asserted that the plaintiff had a mokurrari interest of the nature of a tenure. The plaintiff on the other hand alleged that she had no tenure interest, that she was in possession as a raiyat.
9. That issue was found against the plaintiff, and the District Judge held that her interest was bf the nature of a tenure.
10. As regards the fourth issue, namely, what was the status of the defendants in the same lands, the learned District Judge came to the conclusion that as regards the first six defendants, that is to say, the Ram Naresh group if I may so call them, they had come into possession of their lands under the lease; that the 5 bighas of which they were in possession were not part qf their ancient raiyati lands but that they were holding the lands as raiyats. He also held that inasmuch as, these defendants, the Ram Naresh group, had other raiyatis holdings in the village and were settled raiyats of that village, he came to the conclusion that they would have occupancy rights in all lands held by them as raiyats.' He, therefore, proceeded to consider whether the Ram Naresh group of defendants were holding the lands in suit as raiyats; and, as I tiave said before, he came to the conclusion that Ram Naresh had by virtue of the pattah granted to him entered upon possession and remained in possession of the 5 bighas of the land in dispute, and consequently, inasmuch as he was a settled raiyat holding other lands in the village, he had acquired occupancy right in that portion of the land which was in fact in possession of Ram Naresh and his group. It was pointed out that he claimed 5 bighas only of the disputed' land on behalf of himself and his group, and consequently the District Judge held that he had acquired occupancy right in the 5 bighas only and, therefore, could not be ousted by the plaintiff from those bighas.
11. As regards the other defendants Nos. 7 to 26, the District Judge, having first of all pointed out that they claimed the land as their ancestral guzasta land, proceeded to find that that claim was a false one and that that was part of the land which was included in the pattah already referred to. Then he went on and found as a fact that these defendants, namely, Nos. 7 to 26, did not claim under the pattah, that they did not claim under Ram Naresh or his group and that Ram Naresh himself did not claim anything beyond the 5 bighas, and did not pat in any claim for the remaining part of the land or that he had settled the 20 bighas with the other defendants. He, therefore, came to the conclusion that the remaining defendants were not in possession of the remaining lands in suit as raiyats or by virtue of any valid title, and that they were mere trespassers: and that consequently the plaintiff, having title, to the land was entitled to possession. He, therefore, decreed the suit so far as these defendants were concerned and directed that these defendants be ousted.
12. Perhaps, before I proceed with my judgment, I ought to point out at this stage that the difficulty in this case has to a certain extent arisen from the fact that both the plaintiff and the defendants have, according to the finding of the learned District Judge, set up a false case in respect of what I have already mentioned, and, that being so, it seems to me that the way in which the Court ought to deal with this matter is to decide the case upon the facts which have been found by the learned District Judge, irrespective of the original cases respectively made. But when the matter came to this Court and was before Mr. Justice Roe, the whole body of the defendants took up the ground of argument as set out in the learned Judge's judgment in this way, 'Earn Naresh took a lease of 25 bighas of land from the plaintiff's mother, that he was an occupancy-raaiyat (I think he means there settled raiyat) from before the taking of that lease and that from the moment he entered under cover of the lease upon any part of the land, he acquired an occupancy right in the whole 25 bighas and that having thus acquired occupancy rights in the whole 25 bighas it was immaterial What Ram Naresh chose to do with the land after bis first induction upon it.' The learned Judge then proceeds to say: 'This argument appears at first sight to be one of great weight. It would seem that by the creation of a pattah under the signature of the mother of the plaintiff a holding of 25 bighas was constituted and that by virtue of that pattah Ram Naresh must be considered to have entered upon a holding of 25 bighas as a raiyat, whether or not he chose to occupy forthwith the whole area and actually manipulate each inch of the soil. Indeed had this contention been put forward on behalf of the Ram Naresh group as the basis of their defence in the lower Court, I cannot conceive how it could have failed, But unfortunately that was not the defence taken in the lower-Court.' On the other hand, as I have already pointed out, the defence taken by the defendants in the lower Courts was that these lands were part of the ancient lands of the respective groups, and that they were in possession of them before the pattah was granted. That point was taken by them, to which I have already referred. A further point was taken by Ram Naresh to this effect that the 25 bighas which were the subject-matter of the lease ought to be regarded as one holding; and that if it was found that the first group, that is defendants Nos. 1 to 6, were in possession of any part of it at the institution of the suit, then they must be taken to be in possession of the rest and, inasmuch as they were settled raiyats of the village, they must be taken to hold occupancy right not only in respect of the 5 bighas of which they were in fact in possession but also in respect of the remaining 20 bighas of which in point of fact they were not in possession. Now, with regard to both these points the matter depends upon the provisions of the Bengal Tenancy Act contained in Section 21 (1), which runs as follows: 'Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all land for the time held by him as a raiyat in that village.' One has to look to what was the position of affairs at the time of the institution of the suit, and inasmuch as both parties, as I have said before, had set up a false case in their pleadings, one must be guided not by what appears in the pleadings but by the facts as found by the District Judge. The learned Judge has found, as I read his judgment that at the time of the institution of the suit, defendants Nos. 1 to 6 were in possession of the 5 bighas and the 5 bighas only, and, he has, I think, rightly come to the conclusion that defendants Nos. 1 to 6 were occupancy raiyats by reason of the provisions of Section 21 (1) of the Bengal Tenancy Act, in respect of the land of which they were in fact in possession for the time as raiyats. The words of the section are 'shall have a right of occupancy in all land for the time held by him as a raiyat.' As regards the land which we are now considering, he was holding, as a raiyat for the time, 5 bighas and 5 bighas only. Consequently, in my judgment, the learned Judge came to the right conclusion when he said that as regards those five 5 bighas the plaintiff would not get a decree for evicting defendants Nos. 1 to 6, but that with regard to the rest, neither the first group, Nos. 1 to 6, nor the second group had any right of oeoupany at the time of the institution of the suit and consequently they must be regarded as trespassers, and the plaintiff is entitled to a decree for possession. I do not think it is necessary for me to add anything more than that.
13. For these reasons the judgment of the learned Judge must be upheld and these appeals dismissed.
14. Chatterjea, J.--15. (Mareh 19th, 1917.)--I agree in dismissing the appeals. No doubt, a plaintiff seeking possession must show that at the date of the suit he was entitled to such relief, and a landlord cannot sue to eject even trespassers so long as a lease is outstanding. In the present case, however, the defendant No. 1, who is found to have a right of occupancy, claimed such right only in five out of the twenty-five bighas. The other defendants did not Claim under the defendant No. 1, nor did they rely upon the fact that he had any outstanding lease with regard to the remaining 20 bighas, their case being that these 20 bighas were held by them as part of their ancestral holdings, which has been found to be false. The defendant No. 1 being a party to the suit does not claim any right to these 20 bighas against the plaintiff. Under these circumstances I think the Court below was right in giving a decree to the plaintiff for possession of the 20 bighas.