1. Upon the arguments addressed to us on behalf of the appellants in this appeal the three questions which arise for our consideration are: 1st, what was the status of Homar Ali, that is to say whether he was a tenure-holder or an occupancy ryot? 2nd, whether the compromise entered into by the Defendants Nos. 1 and 2 with the plaintiff, after the institution of the suit, amounted to a surrender of the holding, which, taken wish the previous sale in favour of the Defendants Nos. 7 to 13 (or rather in favour of some of them and the predecessors of the rest) by Homar Ali the predecessor of the Defendants Nos. 1 and 2, operated to constitute abandonment conferring on the plaintiff the right of re-entry, and if so whether that relief should be given to him in this suit; and 3rd, whether the decree of the Court of first instance declaring that the Defendants Nos. 8 to 10 are not liable to ejectment from 1/8th share of the disputed lands should stand in view of the fact that the plaintiff had already obtained an ex-parte decree for ejectment against defendants No. 9 to 13 and application to have the same set aside had already been refused.
2. With regard to the first of these questions appellant's contention is that Homar Ali was a tenure-holder for a fixed term. In support of this contention it is urged that the kabuliyat, Ex. 8, having been on a printed form ordinarily used for drawing up kabuliyat for Government or khas mahal lands in respect of occupancy ryots not much weight should be attached to the terms' and expressions used therein, that the intention of the document was to make Homar Ali a tenure-holder, only the agency by which he was to get the work of cultivation done was not specified and was left undetermined; that the lessee was to cut jungle, erect embankments at his own expense, and make the land fit for cultivation, the obvious intention being that all this was to be done through the agency of others; that the said conditions together with the stipulation that no rent was to be paid for the first three years suggested that it was an ordinary reclamation lease such as is usually given to tenure-holders and that the presumption arising from the area of the lands demised also supports this contention. The respondent on the other hand, relies upon the terms and expression used in the kabuliyat and the clauses forbidding the dig ins of tanks are entitling the lessee to enjoy and take the fruits and ha also relise upon the finally published record-of-rights in which the lessee's rights were entered as those of a settled ryot. It is also urged on behalf of the respondent that the stipulation in favour of devolution of rights by inheritance and the restriction in regard to alienation roads the tenancy a heritable but non-transferable occupancy holding; and that in any event the question was concluded by the concurrent findings of the two Courts below to the effect that it was an occupancy holding and not a tenure.
3. Now, as to whether we should treat the finding of the Courts below on the question of status of the tenant as a finding of fact, I may say at the very outset that I do not assent to the view put forward on behalf of the respondent. In my opinion it is a matter of inference as to whether certain legal conditions had been made out or not. In the case of Sulatu Pass v. Jadu Nath Das  8 C.W.N. 774 (F.B.) it was held that a question as to the nature of the tenancy is a question of law. The case of Ramanuia Mahanta v. Midnapore Zemindary Co.  16 C.W.N 725 on which reliance-has been placed on behalf of the respondent in support of this contention, only lays down that because that is so it does not follow therefrom that all questions of fact arising for the determination of the status are necessarily to be dealt with in second appeal. In my opinion we are perfectly entitled to draw 'our conclusions and inferences as to legal incidents of the tenancy in order to judge of the character of the tenancy and the status of the tenant.
4. The determination of the question however, is to my mind, a matter of some difficulty. It depends almost entirely upon the conclusions that should be drawn from the various terms and expressions contained in the kabuliyat. The question being primarily one of intention as between the contracting parties and the determination of the rights of parties, which are dependent on the facts of the particular case before us a consideration of the various cases, in which one view or another was taken will serve no useful purpose. So far as principles are concerned, they are well settled. First of all, there is the statutory, presumption arising under Section 5 (5), Bengal Tenancy Act. That presumption, though of considerable importance in a case where the origin of the tenancy is not known, is of little consequence, where the terms of the grant are known and unambiguous. In cases where the terms of the grant are equivocal, we have to rely upon attendant circumstances [Debendra Nath Das v. Bibudhendra Mansingh A.I.R. 1918 P.C. 8] and evidence of subsequent conduct is also admissible: Pramotha Nath Kumar v. Nilmoni Kumar  14 C.L.J. 38 Promoda Nath Ray v. Aziruddin  15 C.W.N. 896 and Bamapada Roy v. The Midnapur Zamindary Co. Ltd.  16 C.L.J. 322. What has got to be determined if possible is whether the right acquired was the right to hold the land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it or the right to hold the land for the purpose of cultivating it by oneself or by members of his family or by hired servants or with the aid of partners. In my opinion no particular weight should be given to the use of the word ' ryot ' or ' right of occupancy ' or 'raiyati kabuliat' to be found in the document, which was in a printed form, which is ordinarily used in the case of occupancy ryots and with regard to which the learned District Judge observes that ' it cannot be ascertained which portions were printed and which were manuscript.' I am also of opinion that the clauses forbidding the digging of tanks and entitling the lessees to take and enjoy the fruit's, and the stipulation in favour of heritability and against transferability taken by themselves cannot lead to any definite conclusion. The appellants contention that the lease, one for purposes of reclamation and with no provision for rent for the first three years, should be taken as creating a tenure, in support of which contention reliance was placed upon the cases of the Secretary of State v. Gobinda Prasad Barik  21 C.W.N. 505 and Bibudhendra Mansingh v. Debendra Nath Das  20 C.L.J. 140, does not also afford a sure test. It will be seen that the latter case went up on appeal to the Privy Council and the Judicial Committee in Debendra Nath Das v. Bibudhendra Mansingh A.I.R. 1918 P.C. 8 did not place any reliance upon the remission clause in the lease in determining the question of the status conferred by it. At best, therefore, the lease in the present case was an equivocal one. Of subsequent conduct the evidence is very little; at least nothing definite has been found by the Courts below. Of the attendant circumstances, there is nothing in this case such as is referred to in the judgment of the Judicial Committee referred to above, in the shape of the lessee being a man of means, or a man of another place brought for the purpose of reclamation and he being competent to make such other arrangement or adopt such other convenient steps as he might consider necessary for cultivating the land. The outstanding features of the document in the present case are the following: -(a) There is nothing stated as to granting of sub-leases or collecting of rents from sub-tenants; (b) there is nothing stated as to establishment of tenants on the land; (c) Homar Ali is described as a raiyat enjoying a right of occupancy: and (d) Homar Ali is to make the land fit for cultivation by cutting the jungles and erecting embankments These conditions and circumstances seem to me more consistent with an intention to confer on Homar Ali the right to hold the lands for cultivation by himself or by members of his family or by hired servants or with the aid of partners than that he should be permitted to establish tenants on the land for the purpose of cultivation. To this must be added the presumption that arises upon the finally published record-of-rights under which Homar Ali is re corded as a settled raiyat and the conclusion to my mind is irresistible, that Homar Ali was an occupancy ryot and not a tenure-holder and the interest of Defendant No. 8 was that of a purchases, of a share of an occupancy holding. A lease with similar terms and incidents was held to have conferred an occupancy right in the case of Secretary of State v. Digambar Nanda  27 C.L.J 334.
5. With regard to the second question the surrender by heirs of Homar Ali after the transfer made by the latter is invalid in so far as it professed to affect the interest of the transferees in view of the decision of the Full Bench of this Court in the case of Mohsenuddin v. Baikuntha Chandra Sutradhar A.I.R 1921 Cal. 444. ft is unnecessary to go into the question, which has been raised by the appellant as to whether there is any real conflict between that decision on the one hand and the Full Bench decision of Dayamoyi v. Ananda Mohan Roy  42 Cal. 172 and the decision of the Special Bench in the case of Chandra Binode Kundu v. Sheikh Ala Bux A.I.R. 1921 Cal. 15 on the other, for I am of opinion that in the present suit no relief should be given to the plaintiff on the footing of events, which occurred after its institution.
6. The third question arises only upon the misconception of the fact. It appears that by a kobala, dated 26th May 1899 Homar Ali sold altogether 7 annas share in the lands to five different persons of -whom one Tofeali and one Buzur Mia were joint purchasers of a 4 annas share. Buzur Mia was the brother of the Defendant No. 8. The Defendant No. 8 alleges that the purchase by Buzur Mia was in respect of half of that 4 annas share, that he was the heir of Buzur and he and the other defendants viz., Nos. 7 and 9 to 13, cultivated this share of Buzur jointly. The Subordinate Judge found that the Defendant No. 8 was heir of Buzur and was a co-sharer with him and made a decree refusing to give the plaintiff khas possession of the said 2 annas or l/8th share. By that decree he never meant to re-open the suit so far as the remaining shares out of the 7 annas share transferred by Homar Ali were concerned, shares in respect of which the learned Subordinate Judge had already refused to set aside the ex-parte decree at the instance of the defendants Nos. 9 to 13. It is interesting to note that the appellant did not make these defendants parties to his appeal in the lower appellate Court and does not appear to have raised this question before that Court.
7. The appeal accordingly must be dismissed with costs.
8. Let the record be sent down to the Court below with as little delay as possible.
9. I agree.