1. In there appeals the defendants appeal from a judgment Additional Sub-ordinate Judge of Mymensingh, dated the 31st July 1917. The subject matter of Appeal No. 67 is 203 bighas of land within Mouza Bamna and 10 bighas 11 cottas of land within Mouza Gilibari, both these Mouzas being in the Biatrial of Mymen--singh in Sub-Division Jamalpore; the subject-matter of Appeal No. 22 is 432 bighas 3 cottas of lend within Mouza Chinaduli in the game District and Sub--Division. Mouza Bamna, Gilibari and Chinaculi are situate in Perganna Batiladaha which is within the Touzi of the Collectrate of Zillah Rungpur the Zemindari right in which tet gonna is vested in Maharajah Sir Prodyct Kumar Tagore subject to a mortgage in favour of the Secretary of State. The kids in dispute were formerly in the possession of one Makhanlal Pandey as a jotedar but after his death they were settled with his grandsons (daughter's sons) Hari Charan and Hari shebak Bajpai. Hari Shebak died in 1888, leaving two sore Chandra Mouli and Chandra Bhusan, Hari Charan died in 1898, his son Chandra Gur predeceased him leaving three sons, Rama Nath, Biswanath and Jadunath Chandra Mouli, Chandra Bhusan, Ramanath, Biswanath and Jadunath remained in possession of the lands in dispute and paid rent in respect thereof down to the year 1914, when they sold the lands in dispute to the appellants. During the occupation of the descendants of Hari Shebak and Hari Charan the lands in dispute were cadastrally surveyed and a Record of Rights, which was finally published on the 27th of February 1913, was prepared under the Bengal Tenancy Act in which the descendants of Hari Shebak and Hari Charan named above were entered as havirg a permanent tenure in respeot of the lands of Appeal No 22 and as having a permanent tenure in respect of 203 bighas of Appeal No. 67 and as raiyat with a right of occupancy in respect of the other lands. As a result, the respondents applied, under Section 106 of the Bengal Tenancy Act, to the Settlement Authorities for rectification of the entries, whilst these proceedings were pending, the sale took place and the Section 106 proceedings wire withdrawn and the suits in respect of which these appeals arise were filed on the 30th July 1905 and the 5th August 1915, claiming a declaration that the entry in the Record of Rights was incorrect and in and void and seeking a decree for vacant possession and ejecting the defendants from the lands, and the learned Subordinate Judge has passed a decree in both suits in terms of the prayer. Perganna Patiladaha was, it is said, formerly in Rungpur, and even now the Rungpur Collectorate has jurisdiction over the erganna, although it is within the civil jurisdiction of Mymensingh, and she main contention of the appellants in these appeals is that the jotes in dispute are khod or khudkast tote having the Acts incidents of tenure as Rungpur khod totes which are said to be heritable and transferable although liable to enhancement of cent such jotes being said to be held on permanently renewable leases for varying terms (to the case of the lands in dispute the terms being nine years and in one case seven years, and in one five years) the rent being liable to et hinoement according to the rate prevailing in the legmna at the expiration of the term. There is no evidence on the record as to the teems upon which Mikhanlal Pandey held the jotes but in respect of the land of Appeal No. 22, there are three documents in existence with regard to the terms of the holding of Hari Charan and Hari Shebak, these are Exhibits 1a, 1b and 1c. Similarly with regard to the lands of Appeal No. 67, there are three documents (Exhibits 10d, 10d and 1g) which relate to the transformation he holding of Hari Charan and ,Hari Shebak in these lands. It will be convenient to examine these at this stage.
2. Exhibit la is dated the 2nd Jane 1860, and is executed by Hiri Saebak and Hari Charan in favour of Prosanno Kumar Tagore, it is describes as a cowl bonwoun or money in respect of Girdh Inlampur or Division ifclamporr, Perganna Patiladaha, inoluded in village, Kismut Chinaduli and Hari Shebak and Hari Charan are described as the malgusar-dart of sarasari jote It states that Hari Shebak and Hari Charan were satisfied as to the annual rent of the land which was fixed at Rs. 205--8--0 annually for a period of nine years, and that they took the land on the arrangement stated up to the mead (that is, the term). They agreed thereby to pay the rent daring the term and a similar rent after the term expired until a fresh arrangement was come to according to the measurement it and to the rent prevailing in the Perganna. The document concludes with a statement that in the jote except the riyoti right there was no right of gift, sale or settlement in ijara or of sale by a third party in execution of a decree or of partition without the consent of the Sarhar.
3. Exhibit 1(b) is dated the 15th September 1870 and is executed by Hari Shebak and Hari Charan in favour of the executors of Prosanna Tagore. It is described as a dowl bandobust of land and money--rent and relates to the same property, the rent being fixed at Rs. 236-8-0 for a period of nine years. The lessees agree to preserve the trees, and state that the right to be enjoyed is raiyati right and that there is no right of sale, gift and giving in ijara settlement or transfer without the consent of the Sarkar. The document concludes with a provision that after the mead if they did not file a fresh meadi dowl kabuliyat within one year, according to the rent assessed after measurement and according to the rent prevailing in the Perganna, the jote would come inter the khas maiul lahsil of the Harkar,
4. Exhibit 1(c) is dated the 4th April 1860, and is in respeet of the same land and is executed by Hari Shebak and Hari Charan for a term of nine years in favour of the Receiver of the estate of Prosanno Kumar Tagore, and is described as a dowl bandobust of money rent of land, the rent being Rs. 24-7-120. It is further described as a deed of sarasari dowl kabuliyat and contains an agreement to prseerva --the trees and the same provisions as to transfer, rtnewa', etc., as are contained in Exhibit I(b).
5. The other kabuliyats, Exhibits 10(f), 10(g) and 10(d), are dated respectively 4th January 1864, 27th December 1870 and the 16th June 1878, the first is in respect of Gilibari alone and is for five years, the other two extending both to Bamana and to Gilibari are for seven and nine years resectively. The period of the last kabuliyat expired in 1887. They are similar in terms to the other kabuliyts referred to above with regard to transfer and renewal. The rent payable under Exhibit 10(d) is higher than the rent payable under Exhibit 10(g).
6. The appellant sought to found some arguments on the use of the term dowl kabuliyit, arguing that dowl meant the paper in which the rent is assessed and that a dowl kabuliyat merely fixes the rent and does cot contain all the terms of the tenancy, arguing that the terms and nature of the tenancy must be sought elsewhere, in the present ease, in the custom prevailing with regard to khad jotes of Rungpur. I do not think that this argument aan prevail, the mere fact that you call a document a dowl kabuliyat does not decide its nature, you have to look at the document as a whole to see what it is and, moreover, in some of the dowls at any rate they are desanbed as dowl bantobust of land and money rent.
7. On behalf of the respondents stress is laid on the use of the word 'sarasari' in the dowls, which they say means, in connection with the word, jote, a temporary jote; the appellants, on the other hand, say that the word means ordinary.'
8. To establish, that these jotes are khud or khud jotes the appellants rely on the resecpts given by the landlord Exhibits B 134, B 145 where you find the words khud kismat Chinaduli,' 'khud kismat Ramna Gilibari', 'fatal kismat Giliberi', 'Chukani Kismat Gilibari'. To illustrate the nature of the khud kast Jotes we were referred to a passage from judgment of Mr. Justice Trevor in Thakoorani Dossee v. Bisheshur Mookherjee 3 W.R. (Act X Rulings) 29 at p. 34 : B.L.R Sup. Vol. 202(known as the Great Rent Case) where he states 'khud kasht raiyAs are simply cultivators of the lands of their row village who, after being once admitted the village, have a right of occupancy so as they pay the customary rents and, therefore, with a tendency to become hereditary and with an interest in the produce of the soil over and above the mere wages or of labour and the profits or stook, in other words, above the cost of production' and we were also referred to Phillips' Law of Land Tenures in Bengal (being the Tagore Law Lectures for 1874 75, where it is stated at page 17 that these cultivators (that is Khudkathat raiyats), held a permanent hereditary and although originally an inalienable yet probably subsequently a transferable interest in the land.
9. To establish that khud jotes of Patiladaha have the incidents of Bungpur jotes the appellants rely on the fact that Patiladahi was once a part of Rungpur and that it is even now in the jurisdiction of the Rungpur Collectorate. And with regard to the incidents of Rang, pur jotes we were referred to various passages in judgments and in works dealing with Bengal where the nature and incidents of Rungpur jotes are discussed.
10. In Huromohun Mookerjee v. Ranee Lalun Monee Dasee 1 W.R. 5, a case of the year 1864, dealing with transferable interests, the following passage occurs in the judgment: 'it is not essential that a raiyat should have a mokarari jote in order to dispose of his rights in a holding. There are various descriptions of tenures other than moharari that can be sold and are sold every day. The howlas and nim-howlas of Backerganj and the jotes of Rungpur, for example, neither of these holdings, are, properly speaking, mokarari' but they are 'maurosee' and contain hereditary rights which are and always have been considered transferable'.
11. Again, in Taramonee Dassee v. Birressur Mozoomdar 1 W.R. 86, in discussing whether a right of occupancy is a transferable tenure, the following passage occurs in the judgment: 'The question then arise is a right of occupancy a transferable tenure'. We think that it is so transferable. A right of occupancy is, after all, a perpetual lease, the holder of which cannot be ejected so long as he pays a fair and equitable rent. There are many similar rights common in different parts of Bengal such as the jotes of Rungpur and the howlas and nim-howlas cf Backerganj which are in effect in no respect higher than that of a right of occupancy, inasmuch as they are mere personal rights which are and have always been held to be transferable as well as heritable.' In Hunter's Statistical Account of Bengal, Volume VII, (published in 1876) at page 278, the learned Author states 'in other parts of Bengal the word jotedar signifies an actual cultivator, but in Rungpur District it is used to denote a middleman between the Zemindar and the actual cultivator who has a right of occupancy but is liable to enhanaement of rent. This tenure common in Rungpur towards the east of the District. In Perganna Babar--band are several very larga jotedars, some of them being in recipts of an income of Rs. 50,000. The term of the lease by which the rent is fixed is usually for five or ten years. The tenure is transferable and hereditary. A superior clear can sub-let his tenure to an inferior holder, transferring all the rights and privileges he himself enjoy from the Zemindar. A jotedar cannot be ousted from his holding, even on the expiration of his lease, except under a decree of the Civil Court, but when arrears of rent are adjudged against him his tenure is liable to sale and the lease can be annulled'.
12. In a report on the District of Rungpur by Mr. Glazier, published in 1873, the following occurs at page 47, in Volume 2, published in 1876: 'The raiyats' position also in respect of security of terms, though leaving much to be desired is better than elsewhere. Returns give 25 per cent only of the raiyats as possessing a right of occupancy, but these Returns have been presented by the Zemindars and the number is probably much larger. A large number of sales of jotes or raiyats holding are annually registered, and I have made enquiries of the sellers in a number of cases respecting the time they have held the land and in almost every instance the answer has been from two to three generations or for 20 or more years, In a few cases only did the seller say he had held the land for 12 years or a shorter period. The right of occupancy in a legal term, dating from 1859, and is not generally recognised. The sales of jotes by private deed or decree of Court which constantly take place are made without any reference to, or mention of, the time of occupancy of the previous holder. The Rungpur 'jotes vary from a rental of from Rs. 2 to Rs. 50,000 or more, The smaller jotedars are raiyats proper, the larger ones are middleman, and all jotes, large or small, are saleable and heritable. This Rungpur custom, in which it deviates from the law regulating rights of occupancy laid down in Act X (i.e., Act X of 1859) has forced itself on the notice of the Civil Court, despite the tendency of the law to prune down all excess of foliage into the same formal shape.'
13. In the report of the Rent Law Commission, Volume 1, (published in 1881) at page 10, paragraph 14, the following occurs: As to Rungpur, we take the following passage from a letter of Mr. Glazier, the Collector, written in 1876, The raiyat who holds direct from the Zemindar is called a jotedar, and his holding a jote, whatever its size, which may and does vary from one paying ft rent of one rupee to one of which the rent is half a lakh. The large majority of jotedars have small holdings and as raiyats proper, cultivating their lands either by their own or hired labour and on the system of adhiyari or halves. But a large number of jotedars have ray its under them who are sailed either chowkidar or kurpa praias. The chowkidars, to, have often raiyats under them, and in some oases, especially in the larger totes, there are four and more degrees before you get to the actual cultivator. Jotes are saleable quite irrespective of the term during which they have been held, whether jotes held direct from the Zemindar or Chukani jotes which are held from jotedar. if a man gets a jote today he can legally transfer it by sale to morrow such sales of jotes by registered deed or on decree of Court are of daily occurrence'.
14. We were taken through the oral evidence and the record, which is said to establish the herita Uility and transferability of the Vhod jotes of Patiladaha. It is not, I think, necessary to examine this in detail, but it is sufficient to say that in many cases, on the death of a holder, settlements were made with his heirs, and in some eases with transferees, but in as much as dowls were executed and nazar paid of varying amounts I do not thick that this evidence really advances the appellant's case. It is, however, noticeable that no case of ejectment of a transferee of a jote in the perganna, has been brought to our notice but it is also noticeable that only in two or three cases do you find evidence of the erection of permanent structures on such lands.
15. In addition to the evidence adduced as to the heritability of Rungpur jotes, which these are said to be, in order to show that jotes in Patliadaha are heritable, the appellants rely inter alia (1) on Exhibit F, a kistbandi mortgage bond not, however, in respect of the lands in suit, (2) on Exhibit G, a judgment in a suit for possession of other lands in the Perganna, (3) on Exhibits 1(1) and 1(2), plaints in rent, suits brought by the Maharaja against the heirs of Hari Shebak and Hari Charan,
16. Exhibit F was executed by the sons of one Lakhan Fakir, a jotedar in Patiladaha, in favour of the Receiver of the estate of the late Prosanno Kumar Tagore, and stress is laid on the fact that the sons are referred to as heirs of Lakhan Fakir and that the settlement of the land had been made with them after Lakhan's death (see the evidence of Kalipada Bandopadhaya, witness No. 5 for the plaintiff, in cross-examination, it being argued that unless the jotes were heritable it is unlikely that the mortgage would have been taken by the Tagore estate. This is not, I think, in any way conclusive, as the estate may have been willing to have the sons as tenants and to take from them such security as they could get.
17. Exhibit G is a suit against Upendra Mohon Tugore by the son of a jotedar for possession and the plaintiff secured a decree for possession in right of his father.
18. Exhibits I(1) and (2) are, as already stated, rent suits against the heirs of Hari Shebak and Hari Oharan with whom no fresh settlements hid bf en made on the deaths of Hari Shebak and Hari Charan, and are in respect of the disputed and, but whilst they are recognition of the heirs as tenants in occupation of the if they can be taken as establishing the heritability of the jotes.
18. I have referred in some detail to the appellants' evidence which is said to establish the nature and insident of the jotes, as the question was discussed before us at length and because it is necessary to consider how far it is admissible in the present case, but to my mind the nature of the tenancies must fall to be determined by the construction of the dowls already referred to and any evidence designed to show customary incidents of tenure as attaching to the jotes must be rejected if and so far as it conflicts with what is contained in the dowls themselves: proviso (5) to Section 92 of the
19. Indian Evidence Act, 1872, and see Webb v. Plumer (1819) 2 B. & Ald. 746 : 21 R.R. 479 : 106 E.R. 537, where evidence of custom as to quitting an agricultural tenancy was sought to be given and it was held that as the written document provided for this the custom of the country was excluded. Authority to the same effect will be found in Boraston v. Green (1812) 16 East 71 : 14 R.R. 297 : 101 E.R. 1016, Clarke v. Roystone (1845) 13 M. & W. 752 : 14 L.J. Ex. 143 : 67 R.R. 806 : 153 E.R. 315, and in Brown v. Byrne (1854) 3 El. & Bl. 703 : 2 Com. L.R. 1599 : 28 L.J.Q.B. 313 : 18 Jur. 700 : 97 R.R. 715 : 2 W.R. 471 : 118 E.R. 1304. Coleridge, J., at p. 715, states the principles as follows: that evidence of custom must not be of a particular which is repugnant to or incomes--tent with the written contract.
20. Turning to the dowls before us we find in each of them an express statement that there is no right of sale, gift or transfer without the landlord's consent and, in face of this, it is, to my mind, impossible to admit evidence of a custom of transferability in these jotes. Again, we have the fast of periodical renewals and a proviso in the dowls that if, after measurement and assessment of rent, a fresh agreement is not entered into within one year, the jotes pass into the landlord's vacant possession, which seems to me to son--flict with any custom of heritability. The oiJy right shown is, I think, an option to take a renewal at the rate of rent prevalent in the Perganna which is a part of the contract and arises thereunder. I hold, therefore, upon the construction of the dowl that the tenancies created by them are neither heritable nor transferable and that no evidence of custom is admissible on these heads.
21. One or two small matters remain to be referred to in connection with the dowh. The right to be enjoyed is said to be a raiyati right, but both sides before us and in the lower Court argued the questions in dispute on the footing that the e are tenures and not raiyati holdings. Treating them as tenures they were created before the Transfer of Property Act and the argument founded on Section 10 of that Act (even assuming that the section applies to tenancies such as the present) namely, that any provision against transferability is repugnant to the nature of the tenures and, therefore, void, accordingly fails. It will be convenient in this connection to refer to another argument that was raised on behalf of the appellant.' It was said that the provisions with reard to transfer must be treated as covenants and that inasmuch as there is no provision for re entry upon transfer no right of forfeiture arises on transfer but only a right to damages. I think that, so far as this argument is concerned, it is sufficient to say that in the present case the terms of the tenancies have determined and that no such question arises in the present case.
22. So far I have dealt with the question in dispute on the footing that the matter was free from authority, but there are numerous decisions of Division Benches of this Court on second appeal with regard to the construction of similar dowl kabuliyats referring to Patiladaha Jotes, which are binding upon us if the question turns, is we hold it does, on the construction of the dowl themselves.
23. This was so decided (namely, that they are neither transferable nor heritable) in Prodyot Coomar Tagors v. Krishnamoni Dasya Sarat Chandra Das 40 Ind. Cas. 513 : 21 C.W.N. 809, and to the came effect are the decisions in the following unreported cases of Mohim Chandra Pal v. Maharaah Sir Prodyot Kumar Tagore in Appeal from Appellate Decree No. 2$34 of 1915, Maharaja Baharur Sir Prodyot Kumar Tagore v. Bhubanmoyi Dassi in Appeal from Appellate Decree Nos. 1220 of 1915 and 1516 if 1916, and also the decision in Appeal from Appellate Decrees Nos. 1040, 1043, 1104, 1105, 1106 1107, 1108, 1109 and 1167 1171 of 1910 and 2346 of 1916 and 2147 of 1916.
24. I now come to deal with the other questions raised on behalf of the appellants, First, it is said that the suits are misconceived and that no civil suit lies to correct an entry in the Record of Rights prepared, under the provisions of the Bengal Tenancy Act, the procedure applicable being said to be that provided by Section 106 of that Act. It is further said that Section 106 proceedings having been commenced and withdrawn without leave to institute fresh poceedings, the present suits are incompetent. Secondly, if is said that, in any case, the heirs of Hari Shebak and Hari Charan were tenants from year to year, that this was an interest transferable under the Law, and that this tenancy could only be terminated by notice which admittedly has not been given in the present ease, with the result that the tenancies are still subsisting. Thirdly, it is said that if the heirs of Hari Shebak and Hari Charan were not yearly tenants they are trespassers and have acquired by adverse possession a tenancy right.
25. With regard to the first of these points, we were referred to Jogendra Nath Ray v. Krishna, Pramada Dasee 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, and Apurba Krishna Roy v. Syama Charan Pramanik 54 Ind. Cas. 952 : 24 C.W.N. 223. The first of these cases furnishes authority for the appellants' contention, but in the second case there had already been a decision inter partes on the very question raised in the civil suit which I understand to be the ratio decidend in the case. On the other hand, Troylokhyanath Bose v. Macleod 28 C. 28, and Shashi Bhusan Hazra v. Sheikh Esabar Ali 29 Ind. Cas. 122 : 19 C.W.N. 636, are decisions to the opposite effect. And, moreover, the case of Jogendra Noth Ray v. Krishna Pramada Dases, 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322, has been expressly dissented from in Golab Missir v. Kumar Kalanand Singh 6 Ind. Cas. 217 : 14 C.W.N. 884 : 12 C.L.J 107, and in Pandab Dowari Das v. Ananda Kishun 7 Ind. Cas. 102 : 14 C.W.N. 897 : 12 C.L.J. 195. On a consideration of these decisions, we are not prepared to hold that the present suit cannot be maintained.
26. The second point raised questions of some difficulty, and it will be convenient to state briefly the position as it appears to us. After the expiry of the last of the cowl kabuliyats and the payment of rent, Hari Charan and Hari Shebak held the land as yearly tenants on the terms of the dowl kabuliyats so far as applicable to a yearly tenancy. This is the general law, and see Section 116 of the Transfer of Property Act. I think that, upon the death of the last survivor of Hari Charan and Hari Shebak, this yearly tenancy would descend to their heirs and in any case they were recognised as tenants as they were sued for rent. [See Exhibits (1)1 and (12)]. I think therefore, that the heirs of Hari Shebak and Hari Charan remained as yearly tenants upon the terms of the dowl kabuliyat so far as applicable to a yearly tenancy. This yearly tenancy could only have been terminated by a notice expiring with the end of the year of the tenancy. The appellants contend that, irrespective of the question raised with regard to the general transferability of the Jotes, at any rate, the heirs of Hari Shebak and Hari Charan could transfer the yearly tenancy vested in them, and that as no notice has been given they are, at the least, yearly tenants whose tenancy has not been duly determined by notice to quit and that, accordingly, these suits mast fail on this ground.
27. They say that the yearly tenancies created were new tenancies created after the enactment of the Transfer of Property Act and they are, therefore, assignable, and that, even if they are non transferable, by reason of the terms of the dowl kabuliyat being applicable, that there is no right of reentry reserved upon transfer or assignment and that, consequently, there is no forfeiture.
28. The respondents contend, on the other hand, that the heirs of Hari Charan and Hari Shebak having left and ceased to pay rent and having neglected to take settlement after having been asked to do go, have abandoned the land, with the result that the landlord can re enter and evict the defendants as trespassers, and reliance is placed on Hanuman prasod Singh v. Deo Charan Singh 7 C.L.J. 309, which was a case of homestead land, and on Hiramoti Dassya v. Annoda Prosad Ghosh 7 C.L.J. 553, where the legal relation between the parties was created in 1864, and it was held that the Transfer of Property Act had no application. We were also referred to Ananda Mohan Saha v. Gobinda Chandra Roy Chowdhury 33 Ind. Cas. 565 : 20 C.W.N. 322, where the yearly tenancies came into existence before the passing of that Act, The question, therefore, would appear to turn on the date when the legal relation between the parties was constituted. I think that, under the fasts and circumstances of this case, the legal relation between the heirs of Hari Charan and Hari Shebak must be deemed to have some into operation after the passing of the Transfer of Property Act, and that consequently they had a yearly tenancy in the land which was capable of transfer. This being so, to determine the tenancies notice was necessary which has not been given. I should add that these are not, on the authorities, agricultural tenancies, within the meaning of Section 117 of the Transfer of Property Act, and that Chapter V of that Act is accordingly applicable.
29. With regard to the third point no question of limitation, I thick, would in any case arise. The life tenant, Jotindra Mohan Tagore, died in 1908, and consequently time would not commence to run against the present Maha rajah until that year.
30. In the result, we declare that the entry in the Record of Rights, which was finally published on the 27th February 1913, in so far as it declares that the heirs of Hari Charan and Hari Shebak have permanent intermediate right in the lands in dispute is erroneous, but inasmuch as no notice has been given to determine the yearly tenancies of the heirs of Hari Charan and Hari Shebak, which said tenancies are now vested in the appellants, we can make no decree for possession in favour of the respondents or to ejeat the appellants, and to this extent the appeals succeed and the suits will stand dismissed. Each side has succeeded in part and failed in part and we make no order as to the costs of the appeals and each side will bear its own costs in the lower Court.