R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff in a suit for ejectment which has been dismissed by both the Courts below. It has been found that Niranjan Poddar, father of defendants Nos. 1 and 2, executed in favour of defendants Nos. 3-10 a kabuliyat on Assin 26, 1324 The said kabuliyat was for a term of ten years, i. e. up to Poms 133-1. In the kabuliyat it was stipulated that on the expiry of the month of Poms 1334, the tenant would vacate the lands without any further notice or demand on the part of the landlords. It has been found by the Courts below, and that finding has not been challenged before me, that Niranjan was a settled ryot of the village. On the death of Niranjan his sons, defendants Nos. 1 and 2, inherited his properties and are in possession of the property in suit. The plaintiff got a lease from defendants Nos. 3--10 on Falgoon 2, 1334 and it is on the strength of the title thus derived he has sued for possession.
2. Defendants Nos. 1 and 2 resist the plaintiff's claim, stating that they have occupancy rights. Their defence has prevailed in the lower Courts; hence the appeal to this Court.
3. The plaintiff sought to meet this defence by urging that the land in suit is the khamar land of defendants No?. 3 to 10, and that the father of defendants Nos. 1 and 2 having stipulated to give up possession with the expiry of the month of Pous 1334, the said defendants are bound to vacate. Before me Mr. Roy has placed the said second ground urged in the lower Courts in a different form. He says that the clause in the kabuliyat that the tenant would give up the land on the expiry of the month of Pous 1334 is a clause for surrender and that on the expiry of the month of Poms 1334 it must be taken that there has been surrender. I am afraid I cannot give effect to the said contention. The clause in question is an usual clause in a lease for a term, and would have had its normal effect but for 8.178 of the Bengal Tenancy Act. If the land is not khamar, and Niranjan a settled ryot of the village, which he in fact was, the plaintiff cannot get possession. Defendants Nos. 1 and 2 would have occupancy rights.
4. The main question in the case, therefore, is whether the lands in suit are khamar lands of the proprietors, defendants Nos. 3 to 10. If they are, defendants Nos. 1 and 2 would not by virtue of Section 116 of the Bengal Act acquire occupancy rights in the same and there would be no bar to the plaintiff's getting possession.
5. The Court of first instance held that they are not khamar. In coming to his conclusion the Munsif found that they were previously in possession of a tenant, Panchanan, and that the proprietors who had been siding with the plaintiffs had not produced their papers, which according to them contained a list of khamar lands. The learned Subordinate Judge, however, did not proceed upon the same lines. He stated that the term 'khamar lands' has a technical meaning 'They are', he said,
lands appropriated at the date of the Permanent Settlement Regulation for the subsistence of the zemindars and added to the malguzari lands when revenue was fixed. In the present case there is no evidence that the land was or is khamar in the sense stated.
6. He accordingly upheld the decree made by the Munsif.
7. All lands in khas possession of the proprietor are, no doubt, not khamar or nijjote lands. The proprietor may be in khas cultivation of waste lands, of lands abandoned by tenants of lands included in tenancies but purchased khas by the proprietor at rent sales or otherwise. That would not make such lands his khamar. It is not tenenmental land but something like the lord's domain of feudal Europe. At page 319 of the Tagore Law Lectures of 1895 delivered by Mr. Sarada Charan Mitter the history of khamar lands has been given. In early times they were cultivated in khas by the proprietor and his family members and later on by hired labourers. A distinction was drawn between them and lands cultivated by ryots. During the Muhammadan regime no revenue was assessed on them (nunkar) but the land tax was assessed on ryoti lands only. By Section 39 of Regulation VIII of 1793 revenue was assessed on them, save except where the proprietor could prove that he held them as khamar from before August 12, 1765, and had been permitted to retain them whenever his estate was made khas by Government or let out in farm. It is quite true, therefore, to say that land allotted for the maintenance of the proprietor is khamar. It need not be at all times in the direct cultivation of the proprietor. If he lets them out for terms of years or from year to year the main incidents are not lost, and tenants settled on them would not acquire occupancy or non-occupancy rights. Such is no doubt the import of khamar, but I am not aware of any case which has required the proprietor to trace the history of a particular piece of land to a time anterior to the Decennial Settlement Regulation, and show that it was allotted or used for the maintenance of his ancestors and predecessors-in-interest before he could avoid the claim of a tenant to occupancy or non-occupancy rights when he hag been holding it for a term of years, or on a lease from year to year. Section 120 of the Bengal Tenancy Act has laid down the standard of proof. If khas cultivation by the proprietor for twelve continuous years before the passing of the Bengal Tenancy Act is proved, that is to be regarded as sufficient. If village usage recognises a parcel of land to be the malik's khamar that would be enough. It is has been let out as khamar before March 2, 1883, that would be enough. Even admissions and assertions made after March 2, 1883, or after the passing of the Bengal Tenancy Act would be admissible to prove that it is khamar. In fact any piece of evidence relevant under the provisions of the Evidence Act would be admissible and will have to be weighed by the Court. These points must now be taken to be settled by the judgment of the Judicial Committee in the case of Bindeshri Prasad Singh v. Maharaja Kesho Prasad Singh 53 IA 164 : 95 Ind. Cas 1025 : AIR 1926 PC 79 : 7 PLT 553 : 44 CLJ 86 : 3 Pat. 634 : 51 MLJ 587 : 31 CWN 74 (PC), which has discarded the rigorous interpretation of Section 120 (2) of the Bengal Tenancy Act adopted in the case of Nilmony Chuckerbutty v. Bykant Nath Bera 17 C 466, and has adopted the more liberal construction placed on it in the case of Bhagtu Singh v. Raghunath Shahai 13 CWN 155 : 1 Ind. Cas. 571. The decision of Dass and Wort, JJ. in Santokhi Mandar v. Rameshwar Singh 7 Pat. 187 : 114 Ind. Cas. 769 : AIR 1929 Pat. 4l, is also useful. As the learned Subordinate Judge has overlooked the provisions of Section 120 of the Bengal Tenancy Act and the cases I have noticed above and has proceeded upon an exacting and almost impossible standard of proof I am bound to remand the case and to direct the lower Appellate Court to decide on the evidence on the record as to whether the lands in suit are khamar lands of the proprietors. If it finds that they are, the suit is to be decreed, if not it is to be dismissed. The decree of the Subordinate Judge is accordingly set aside and the case remanded to the lower Appellate Court. Costs to abide the result.