1. This is a reference by the learned Sessions Judge of Rungpur, dealing with the judgment of the Sub-Divisional Officer of Rangpur, Sadar.
2. It appears that complaint, was brought by one Dunda against one Asimulla and others, alleging that they had committed offences under Section 143 and Section 447 of the Indian Penal Code; and the Magistrate convicted them of these offences and imposed certain fines upon the accused persons. Upon an application to the learned Judge he made the reference to this Court with which we are now dealing, and, it is, of course, common knowledge that a reference can only be made in respect of an error on a point of law.
3. The learned Judge has set out in the reference the respects in which he considers the Magistrate made a mistake in point of law.
4. The third paragraph of the reference deals with the particular portions of the order which the Court making the reference considers to be an error in point of law, and the first clause (a) is as follows:
The part of the order where the learned Sub-Divisional Magistrate negatived the contention that adhiars are mere labourers in the absence of evidence that the adhiar was a tenant and that the landlord's entry upon the land held by adhiar was not trespass (in the absence of evidence, that according to the contract in this case, the adhiar was a tenant).
5. The manner in which the point is stated is somewhat obscure, but I think the learned Judge meant that the Magistrate should have held that the complainant was no more than a mere labourer, inasmuch as there was no evidence that he occupied the position of a tenant, and that as the complainant was a mere labourer, Asimulla and others could cot be guilty of trespass.
6. The second clause of that paragraph is as follows: '(b) That part of the order where the learned Magistrate held that in this case the accused landlord and those who acted on his behalf could not plead a bona fide claim of right.'
7. On the first point, in my judgment there is no doubt that an adhiar may be a mere labourer or he may be a tenant; and the question whether he is a mere labourer or a tenant must depend upon the facts of each case.
8. The facts of this case are as follows: The Magistrate has found that Dunda, the complainant, had been cultivating the land in Adhi under Asimulla for a long time and that he had in fact ploughed the land in Dune 1923, with a view to growing paddy on the land, as he had done in previous years. He drew attention to the fact that some witnesses had been called on behalf of the accused to prove that Asimulla had been in khas possession of the land and that the complainant had never cultivated the land at all.
9. The evidence given on behalf of the accused the Magistrate rejected; and, he accepted the evidence given on behalf of the complainant. He further came to the conclusion, having regard to the facts which are set out in his judgment, which included the number of persons, who went for the purpose of ploughing the land and the number of ploughs, which were taken on the occasion in question, that Asimulla and those who were with him were not acting bona fide in the exercise of a claim of right.
10. Having regard to these facts, I should be prepared to hold that there was evidence before the Magistrate, which would justify him in coming to the conclusion that the complainant was not a mere labourer, but that he had some interest in the land as a tenant.
11. It is to be noticed that in the reference the learned Judge stated that the only evidence is that the complainant holds two plots of land in Adhi for which he gives hall the produce as rent. I do not know whether the learned Judge quite appreciated what might be the effect of that sentence. If the sentence were taken alone, the natural inference would be that there was a relationship of landlord and tenant between the complainant and Asimulla. But I do not base my judgment: upon that particular phrase used in the learned Judge's reference. I base my judgment on the facts as set out in the Magistrate's judgment.'
12. My learned brother in the course of the argument referred to a case, Deb Nath Das v. Ram Sundar Barman  19 C.W.N. 1205. That case came from this particular part of the country, Rangpur.
13. The Rule had been granted against the decision of the learned Munsif of Rangpur: and the question was whether the plaintiff in that case was in possession as an adhiar: the learned Judges, who decided that case, came to the conclusion that he was more than a mere labourer, that he was a tenant, and that his possession would be protected under Section 9 of the Specific Relief Act. The learned Judges pointed out that there was no affidavit before the Court that an adhiar in that part of the country means a 'labourer' and not a 'tenant' and that there was on the contrary a statement in the affidavit that the land was 'let out' to the plaintiff as adhiar, which term is appropriate to the existence of a tenancy. They then went on to say that: 'The various books upon the subject which were referred to show that very largely an adhiar is a tenant, and the learned Judge who decided this case must be well aware of the meaning of the term in the district in which his Court is.'
14. It seems to me, therefore, that the finding of fact at which the Magistrate arrived in this case is in accordance with the decision in the case, which I have just cited.
15. For these reasons in my judgment this reference should be refused.
16. I agree.