1. The main question, which has been raised in this appeal, is whether the lands held by the defendant who is the respondent before us, in respect of which the plaintiffs-appellants sought to obtain an enhancement of rent, form a tenure or a raiyati-holding. In the judgment of the lower appellate Court, it is stated that this particular tenancy began in 1231 B. S. with a lease of 200 bighas of jungle land, In 1233 B. S. Gopinath Mitter the lessee took settlement of another 160 bighas and in 1251 of another 15 bighas. In 1263 he took a settlement of 411 bighas and after his death his widow got an amalnamah for 1082 bighas. These were amalgamated with another holding. So that in all the lands now held by Gopinath's son amount to 1,311 bighas.
2. Both the lower Courts held that the defendant was a raiyat and that the lands held by him constituted a raiyati-holding.
3. The plaintiffs have appealed. Section 5 of the Bengal Tenancy Act defines a tenure-holder and a raiyat and Clause 5 of that section provides that when the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown. In the present case, therefore, a presumption arises in favour of the plaintiffs that the defendant is a tenure-holder. The lower Courts have, however, held that that presumption has been rebutted, and the arguments in this appeal have been mainly directed tot showing that the conclusion is not supported by the facts. The lower appellate Court in arriving at its conclusion that the defendant was a raiyat relied on the decision of this Court in the ease of Surendra Nath Sen v. Baroda Kanto Sirkar and Ors. 10 C.W.N. clxiv. In that case, it was held that the* words of Section 5 Clause 5 of the Tenancy Act afford no ground for holding that the fact that the quantity of the land exceeds 10) bighas is conclusive evidence that the land forms a tenure. We see no reason to differ from that finding. But we agree that in cases of this description, the final determination must depend upon the facts as disclosed in each case. The Court of first instance has relied in support of the view that the holding is a rayati-holding on the decision of this Court in the case of Durga Prosonno Ghose v. Kali Das Dutt 9 C.L.. 449. One of the learned Judges who decided that case expressed the opinion that ' the only test of the rayati-interest is to see in what condition the land was when the tenancy was created. If raiyats were already in possession of the land and the interest created was a right not to the actual physical possession of the land but to collect rents from those raiyats, the interest is not a rayati. If on the other hand the land was jungle or uncultivated or unoccupied and the tenant was let into physical possession of the land that would be a rayati-interest and the nature of this interest so created would not, according to a number of decisions of this Court, be altered by the subsequent fact of the tenant sub-letting to under tenants.' That case cannot, however, in our opinion, be held to lay down definitely and for all purposes the distinction between a tenure and a raiyati-holding. In our opinion, it simply lays down one broad line of distinction and cannot be held to be exhaustive. In fact according to the definition of a tenure as given in Section 5 of the Bengal Tenancy Act, if uncultivated land were let out for the purpose of being brought under cultivation by establishing tenants on it, then the mere fact that the land was jungle 1and or unoccupied at the time of the settlement would not make the person with whom the land was settled a raiyat instead of a tenure-holder. In fact such a person would under the definition be a tenure-holder. In the present case the area, of which settlement was first taken, was certainly greater than could ordinarily be brought into cultivation by the defendant himself or by members of his family or by hired servants or with the aid of partners so as to constitute it a raiyati holding and the areas of the land subsequently taken over were equally large. The learned Judge has, however, held in view of the terms of the lease itself, that, as the original lease was a rasadi jungleburi lease and the other leases were similar to the original lease, therefore, the holding must be taken to be a. raiyati- holding. The terms of the lease are, however, to the effect that the land is leased for the purpose of being brought into cultivation, Abad Kariya-ojotaia. These words would not necessarily imply that the tenant was to bring the land under cultivation himself or by members of his own family or by his own servants. There is nothing in these words to render it improbable that the intention was that the land should be brought under cultivation by establishing tenants thereon. This view has been taken lately by this Court in several similar cases from the same district where the terms of the leases are almost identical with those of the lease in the present case. These cases are Ram Narayan Chakrabutty v. Midnapore Zemindary Company Ld. Unreported Appeal No. 1716 of 1906 ' decided on the 27th April 1908, and the Midnapore Zemindary Company Ld. v. Bamapada Roy Unreported Appeal No. 1576, of 1906, decided on the 27th November 1908. In the latter case it was held that in determining the question of the character of the holding not only the origin of the tenancy should be taken into consideration but also the subsequent conduct of the parties in regard to the land. In the present case, we have found that the original area of the lands taken was considerably more than what could be cultivated by the respondent himself or by members of his family or by hired servants or with the aid of partners and the respondent himself does not appear to be a man of the cultivating' class. The subsequent settlements were also of large area, and the total amount of the land now held by the respondent exceeds 1,300 bighas in area. We are of opinion that on consideration of all these facts and on the terms of the original lease, it is impossible to hold that lands were taken originally as a raiyati holding or that they have subsequently been held as such. These facts, in our opinion, lead to one conclusion only, that these lands were taken for the purpose of settling tenants on them for the purpose of bringing them under cultivation and so realising rents from the tenants, that is to say, the lands were taken as a tenure. Disagreeing, therefore, with both the lower Courts we hold that the lands, the subject of the present suit, form a tenure and not a raiyati holding. We set aside the findings of the lower Courts and direct that the case be sent back to the Court of first instance through the lower appellate Court in order that the other issues raised in the suit may be gone into and determined and the suit disposed of according to law. Costs will abide the result.