1. This appeal is by the defendants against a decision of the Subordinate Judge of Faridpur, dated 31st January 1917, reversing a decision of the Officiating Munsif of Chikandi, dated 26th July 1915. The plaintiffs' suit was to eject the defendants from the holding in suit. The defendants denied that the plaintiffs had any title to the land in suit and alternatively contended that they were occupancy raiyats and were not liable to be ejected from the land. The Munsif upheld the defendants' contention, holding that the plaintiffs did not establish their title to the land in suit, and, secondly, he held that the defendants were occupancy raiyats and not liable to be ejected from the land. The Subordinate Judge has reversed the finding of the Munsif upon both the points. So far as the first point is concerned, it is urged before me on appeal that the Subordinate Judge relied upon two pieces of evidence which, strictly speaking, were not evidence, and that it has vitiated his decision on the question of title. He apparently relied on a registered Kobala, Exhibit H, dated 1291, executed by one Mohesh, who is father of the present plaintiffs, in favour of one Jagobandhu Kar, which recites the granting of the property by one Gangadas to Mohesh, Gangadas being a son of one Anadi Ram, the original proprietor, who died without male issue and who had a sister who left a son, Guru Oharan, who left a daughter, Shama Sundari, who married Mohesh. The learned Vakil for the appellants points out that Exhibit H does not relate to the land in suit, and, therefore, cannot be taken as evidence with regard to the land. I shall assume in his favour that that is so and that he is correct in saying that Exhibit should not have been taken into consideration by the Subordinate Judge. It also appears that the Subordinate Judge relied on a decree of the High Court in a suit brought by Mohesh against another under-tenant of this Jama. But it appears that all that the High Court decree shows is that the suit was decreed and there is no evidence on the record to show that the land in that suit was held under the same title as the land in the present suit. But the Subordinate Judge also relied on certain Dakhilas granted by the defendants to the plaintiffs and their father Mohesh which extend back as long as the year 1884, in which they admitted that Mohesh and the present plaintiffs were their landlords. This being so, I think that there was evidence on the record apart from the Kobala, Exhibit H, and apart from the High Court decree which would justify the Subordinate Judge in arriving at the finding at which he has arrived upon appeal. It is urged by the learned Pleader for the appellants that it is impossible to know what weight the Judge would have attached to the Dakhilas alone if he had disregarded Exhibit H and the High Court decree. I agree, of course, that it is difficult to sever one from the other. But I think that the Dakhilas extending, as thay did, from the year 1884 were evidence which by themselves would be sufficient to justify the Finding of the Subordinate Judge. I think, therefore, that the appeal fails so far as this point is concerned.
2. Then the second point is with regard to the nature of the defendants' holding, that is to say, whether they were merely under raiyats or whether they had acquired occupancy rights in the land. In support of this reliance is placed upon the finding of the Munsif that the plaintiffs were never cultivators and that neither Gangadas nor Guru Charan nor any member of the family cultivated the land. The learned Vakil for the appellants refers me t the definition of tenure-holders and raiyats in Section 5 of the Bengal Tenancy Act, as showing that under the circumstances found by the Munsif they would be deemed to be raiyats and had acquired occupancy rights in the land. As against this the learned Vakil for the respondents points out that what I have got to consider is the nature of the holding in its inception and that as there is evidence on the record that from the year 1881 the landlords of the plaintiffs granted Dakhilas showing that the land in suit was karsa raiyati land and that as there is no evidence that Anadi Ram, who was originally a tenant of the land, did not himself cultivate the land, I must assume that the land was originally taken by Anadi Ram for the purpose of cultivating the land either himself or by some member of his family or by his servants. It is unfortunate for the defendants that there is no evidence on the record as to what Anadi Ram did with the land. Of course, if Anadi Ram having acquired a right to hold the land for the purpose of cultivation within the meaning of Section 5, Sub-section (2), of the Bengal Tenancy Act immediately proceeded not to cultivate himself or through any member of his family or through his servants but to let out the land to the defendants or their predecessors-in-title, I should have agreed with the contention that for the purpose of this appeal the plaintiffs must be regarded as tenure-holders and the defendants as raiyats who had acquired occupancy rights in the land. But I do not think that I am entitled, in the absence of evidence, to assume that Anadi Ram did not cultivate the land. I think that it was for the defendants to show if they wanted to establish that what in its inception was Karsa raiyati land was in fact a tenure and that Anadi Bam never himself cultivated the land but immediately having acquired a right to hold it let it out. This being so, the second point also fails. I think that the Subordinate Judge was justified in arriving at the conclusion at which he has arrived in this case that the interest of the plaintiffs in the land is that of raiyats at fixed rent.
3. This being so, the appeal fails and must be dismissed with costs.