1. These appeals are preferred by the plaintiff: he brought the suits from which they arise to eject the defendants from various parcels of land, which they hold under him. His case is that the defendants are under-raiyats, and that his own interest is that of a raiyat. The Courts below have found that the plaintiff served notices on the defendants, but they have upheld the defence plea that the plaintiff is a tenure-holder and that the defendants are raiyats, not under raiyats.
2. The learned Subordinate Judge has compiled a very careful narrative of the transactions affecting the tenancy since 1888 when the Ghoses, who may be called the plaintiff's predecessors, executed a mortgage in favour of one Tarini Kanta, and it is unnecessary to reproduce the narrative in this judgment.
3. Three points have been pressed on behalf of the plaintiff, namely, (1) that it was not open to the lower Courts to go into the conduct. of the parties for the purpose of determining the origin of the tenancy.
(2) That the Kabuliyats executed by the Ghoses speak of raiyati interests and oral evidence could not be admitted to vary the terms of the contracts.
(3) That if any presumption arises from the area of the holding, it is rebutted by the admissions of the defendants made in certain rent suits of 1911.
4. Regarding the first argument it is said that the Ghoses, when mortgaging the tenancy to Tarini Kant, described it as a jote jama in which they had a transferable occupancy right; Tarini bought the holding in execution of a decree on the mortgage: Siva Sahai bought from Tarini, and the defendants were inducted by Siva Sahai, and, therefore, they cannot deny that the interest of the Ghoses was that of occupancy raiyats. It is pointed out, however, on behalf of the respondents that this argument was not put before either of the lower Courts. I think, .therefore, that we should not allow it to be urged in this Court; and I may add that the expressions used in the -mortgage are wanting in exactitude.
5. As for the second contention, the kabuliyats executed by the Ghoses in 1880 are described as ordinary raiyati kabuliyats. The learned Subordinate Judge, however, finds as a fact that the tenants, were inducted on the land by Siva Sahai before the earliest date at which Jnanada Sukul can possibly be regarded as having agreed to the division of the tenancy effected by the kabuliyats. It is conceded that a tenure-holder cannot be allowed to change his status to that of a raiyat to the prejudice of tenants on the land at the time of the change, and it follows that, to the extent of Jnanada Sukul's share, the change could not be operative as against the tenants. It is suggested that the change could be sanctioned by Bindeshwari and was sanctioned to the extent of her share at the time of the execution of the kabuliyats, that is, a few years before the defendants entered on the land. We have not been referred to any authority for this proposition, and it is one which I should be very unwilling to accept in a case like the present where the kabuliyats do not refer to specific land, but to an undivided share in land. I think this argument also fails.
6. With respect to the third contention, the plaintiff took the extraordinary step of producing a copy of the Court's judgment instead of the defendants' written statement. The judgment contains a summary of the pleadings no doubt, but if the plaintiff wanted to show that the defendants are estopped from pleading that the plaintiff is a tenure-holder, he should have produced the written statement. In any event, however, it is clear that the defendants were meeting the particular allegations made by the plaintiff, and when they pleaded that occupancy rights were not transferable, they did not admit that the plaintiff's right was that of a raiyat and not that of a tenure-holder.
7. In my opinion, the arguments urged on behalf of the plaintiff cannot be sustained, and on the very definite finding of fact recorded by the learned Subordinate Judge the appeals must, fail. They are dismissed with costs.
8. I agree.