1. These two appeals arise out of a suit for Khas possession of certain lands described in four schedules (Ka, Kha, Ga and Gha) to the plaint by ejectment of the defendants therefrom, and for mesne profits.
2. The plaintiffs alleged that the lands in suit are comprised within Zamindari Baridhati, Touzi No. 156 of the 24-Pargannas Collectorate. The Zamindari originally belonged to Sir Radha Kant Deb, and his executors on the 22nd Baisakh 1281 granted a Patni of it to his widow Rani Padmamani. In 1879 the Zamindari interest was purchased by Sir Romesh Chandra Mitter, the father of the plaintiffs, and in the same year the Patni interest was purchased by one Nabin Chandra Ghose. The latter granted a Darpatni to his son Kishori Lal Ghose in 1895: on the death of Nabin, all his sons including Kishori became entitled to the Patni, and Kishori alone was the Darpatnidar.
3. Sir Romeah Chandra Mitter died in 1899, and the Zemindari vested in his executrix Jagattarini. She instituted a suit for arrears of rent of the Patni against Kishori Lal and his brothers, and in execution of the decree in that suit purchased the Patni in Khas on the 15th August 1906 with power to annul all incumbrances. On the 3rd December 1906 she annulled the Dar-patni of Kishori by service of a proper notice under the porvisions of Section 167 of the Bengal Tenancy Act, and it is the plaintiffs' case that from December 1806 rents were realized in Khas from the tenants. The executrix died in it is and the Zemindari right thereupon vested in the plaintiffs.
4. It appears that within the Zemindari there were two Ramas belonging to one Ramjan Naskar, one in Mouza Balaria which is described in schedule Ka to the plaint, and the other in Mouza Bankipur described in schedule Kha. These were purchased by the defendant' father, along with the lands of schedules Ga and Gha, on the 22nd July 1899 from the representatives of Ramjan and the Receiver of the High Court who had been appointed in a partition suit between the representatives of Ramjan, in the original side of the High Court.
5. According to the plaintiffs, Ramjan had no permanent or transferable right in these Jamas, while the defendant says that they were the Mourasi Mokurari tenures of Ramjan, and he had a transferable right therein and that in any case they were holdings at fixed rents, and as such, transferable by law and custom. He further pleaded that after his father's purchase he bad been recognised as a tenant by the plaintiffs in respect of these tenancies.
6. As regards the lards of schedules Ga and Gha the plaintiffs said that the defendant had no right to the same. The defendant pleaded that they were not comprised in Touzi NO. 156 and were not Mai lands, and even if Mai, they were held by Ramjan and his successors adversely to the Zemindars for over 12 years, and that, therefore, he had a good title to the same by virtue of his father's purchase thereof from the representatives of Ramjan and the Receiver.
7. The Court below dismissed the claim in respect of schedules Ga and Gha on the ground that it was barred by limitation, arid also dismissed the claim with regard to the lands of schedule Ka on the ground that Ramjan had a permanent transferable interest in the lands of that schedule. Only the lands of schedule Kha were decreed to the plaintiffs.
8. The plaintiffs have preferred Appeal No. 164 of 1914 in respect of the lands of Schedules Ka, Ga and Gha, and the defendant has appealed in No. 253 of 1914 in res-pest of the lands of schedule Kha.
9. We will first deal with the lands of schedule Ka in Mouzah Balaria formerly belonging to Ramjan Naskar: with regard to these lands, the defendants' case appears to have been that Ramjan and his father held a large number of small tenancies for a very long time at uniform rents which were consolidated into a large Jama, that the Jama was held in Mourasi Mokurari transferable right from a long time, and that even if it be held that he had not such a right, the Jamas having been held at uniform rate of rent from the time of the Permanent Settlement, they were Raiyati holdings at fixed rates. The learned Subordinate Judge was of opinion that the small tenancies which were consolidated in 1206 cannot be clearly traced to the papers of previous years, that in many cases there were changes in the rents, and the defendant had no explanation to give for many of these changes. Again it appears that Rs. 18-9-18 was added for patit tardood or reclaimed patil land. So it cannot be said that all the Jamas which went to make up the large tenancy had been existing from long before and there was no change in the amounts, Although the presumption might be applicable to many of the lands, it cannot be ascertained which lands these are.'
10. He, however, came to the conclusion that a tenure was created by a Pattah when the small Jamas were consolidated in 1206, and that the tenure should be held to be a permanent one.
11. No Pattah has been produced, and the Court below relied entirely on a rent receipt (or account)(Exhibit P-28) in holding that the tenure 'was created by a Pattah bearing the seal of the Zemindar.' This rent receipt was granted by Kanai Dhali and another (who it appears were the Tahsildars of the Zemindar) in which the Balaria tenancy is described as follows: Nij Balaria as per account of the Pattai and deed of exchange bearing seal of the Zemindar 147 Bighas 11 Cottas, rent Rs. 210-13-18.'
12. The learned Subordinate Judge says that no Pattah was produced because the defendant did not receive any from the Receiver when he purchased the properties. It appears that the defendant produced two lists of documents which he says he obtained from the Receiver, one of them (Exhibit N) was in English, and the other, a list in Bengali (Exhibit N-1). He further says that he received the documents (Exhibits O series) title-deeds, and the Hisabs (Exhibits P series) from the Receiver, and made them over to his father, and that on his father's death he got them in his father's box. He says, however, 'I got no document from the Receiver which was not entered in the firsts.' Now, Exhibit P-28 (or any of the P series) is not mentioned in either of the lists of documents which the defendants got from the Receiver. It is contended on behalf of the appellant that there are suspicious circumstances about the P series, avid that in any case the proper custody of the documents is not proved. Such reliance is placed on behalf of the appellants on the statement of Anath Bandhu that he got no document from the Receiver which was not entered in the lists, and the fact that Exhibit P-28 is not mentioned in the lists. In the conveyance executed by the Receiver dated the 9th March 1900, it is stated that 'all documents of title and other documents and collection papers' had been made over to Anath Bandhu on the 18th August 1899, and it may be said that the documents Exhibit, P series were made over to the defendant at that time. Anath Bandhu's statement, however, is that he got no document from the Receiver which was not entered in the firsts. He says that he received some collection papers from some of the Naskars, but these were at his Santipur house at the time when he was giving his deposition.
13. The document bears a stamp of eight annas, which appears to be the stamp payable for a receipt of rent exceeding Rs. 200 and not exceeding Rs. 500, granted to a under-tenure-holder under Regulation X of 1829, which was then in force.
14. It is contended on behalf of the defendant that no objection was taken to the document in the Court below which was admitted without objection, that the objection is only as to the mode of proof, and that the plaintiffs are, therefore, precluded from raising the objection for the first time in appeal. But the cross-examination of Anath Bindhu was dearly directed to the question of the proper custody of the documents.
14. Under the circumstances stated above, it is not clear that the defendant got Exhibit P-28 from the Receiver, nor is it clear that he got it from the Naskars, and the custody of the document cannot, therefore, be said to have been clearly proved.
15. The next question is whether the Jama is a tenure. The Court below observes that in some of the rent receipts it is described as 'on account of tenure', but the receipts are in printed form, and it appears that receipts 'on account of tenure' were granted in respect of small Raiyati holdings consisting of only of a few Cottas of land (see, for instance, Exhibits A4, A6, A7). It appears that the defendant purchased from the Receiver and the representatives of Ramjan a holding in another Taraf (Gokarni) and took a Mourasi Mokurari lease in respect of it from the plaintiffs' mother on the 19th July 1902. The Kabuliyat (Exhibit 15) is described as a Mourasi Mokurari Raiyati Kabuliyat, but the rent receipt granted in respect of that tenancy describes it as a tenure. No doubt the Kabuliyat shows that the tenant was given the right to establish Hats, Golas, to excavate tanks and erect masonry buildings, and it is accordingly contended on behalf of the respondent that it was really a tenure but in the very paragraph of the Kabuliyat where these rights are, given it is described as Mourasi Mokurari Kabuliyat of Raiyati lands.
16. It is contended on behalf of the respondents that as the area exceeded 100 Bighas, it should be presumed to be a tenure, although it was created before the Bengal Tenancy Act, and reference was made to Bengal Indigo Co. v. Roghobur Das 24 C. 272 (P.C.) : I.A. 158 : 1 C.W.N. 83 : 7 Sar. P.C.J. 94 : 12 Ind. Dec. (N.S.) 848 and Khatajan Bewa v. Aswini Mohan Ghose 2 Ind. Cas. 72 : 9 C.L.J. 82 (note.), In the road-cess returns filed by Ramjan Naskar it was described as a tenure, and the Dakhila Exhibit P-28, referred to above, bore a stamp of 8 annas which indicated that the tenant was not a cultivating Raiyat, but was a tenure-holder. Ramjan was not a cultivator, and his lands were in the possession of sub tenants. Hut the road-cess return filed by the predecessor-in-interest of the defendant cannot be used as evidence in his favour (see Section 95 of Act IX of 1880 B.C.). As for the presumption arising from the area exceeding 100 Bighas it is rebutted by the Chalan, Exhibit P-26, which gives the small Raiyati holdings which constituted the Jama. Admittedly, up to 1266, there were a number of small Raiyati holdings, and no question can arise that they constituted a tenure until the alleged consolidation in 1263. The fact that Ramjan did not cultivate the lands himself and the lands were in possession of his sub tenants or the mere fact of consolidation cannot alter the nature of the tenancies which up to 1256 were Raiyati holdings, unless the landlord and the tenant agreed in that year that the tenancy should thenceforth be a tenure. See Moula Buksh v. Judoonath 21 W.R. 267 and Promoda Nath Roy v. Asiruddin Mandal 11 Ind. Cas. 262 : 15 C.W.N. 896 at p. 905. So the question whether the tenancy was a tenure or Raiyati holding depends upon the alleged grant of the Mokurari Pattah in 1266.
17. Assuming, however, that there was a Pattah, the question is whether any permanent right was granted. The learned Subordinate Judge came to the conclusion that a permanent Mourasi Mokurari tenure was created, upon the following considerations: first, that the small Jamas were consolidated into one of 147 Bighas 11 Cottas at a rent of Rs. 209-13-18 in 1269; secondly, that rent has been paid at the same rate for over half a century, though the rent has been proportionately reduced in consequence of the land included in the tenure having been reduced on account of acquisition under the Land Acquisition Act, or by reason of sales of lands, and that the rate of rent remained the same; thirdly, that on a portion of the tenure, Ramjan Naskar had Pucca houses, a Musjid and a grave yard and tanks which shows that ha had permanent rights; fourthly, that although the tenure was valuable yielding an income of about Rs. 1,003 a year, no landlord thought of making the tenure Khas, or enhancing its rent, and, lastly, that there was some sort of recognition of permanent rights by Kishori Lal Ghose, the Dar patindar, in a suit by him against a son of Ramjan Naskar and certain other persons.
18. With regard to the first ground, viz., the alleged consolidation of the small tenancies into one of 147 Bighas 11 Cottas at a rental of Rs. 210-13-18 in 1266, it appears from subsequent pipers filed by the defendant himself that there was no such consolidation in that year. The Chalan by which rent was deposited by Ramjan Naskar in the Collectorate under the provisions of Act VI of 1869 (the rent deposited being from Sravan to Chait 1275 B.S., payable to the executor to the estate of Raja Radha Kant Dab, Zamindar; mentioned all the small tenancies as per Jamabandi, the name of each tenancy, the area and the rent payable for each being mentioned separately.
19. The total area and the rant were stated as follows:
B. C. Ch. Rs. as. Gs. Ks.
132 8 12 Rent ... 179 4 17 1
Company's Batta ... 11 15 3 0
Waste lands brought under
cultivation in nij name
15 2 4 18 9 18 0
147 11 0 209 13 18 0
Deduct rent for 3
months sued for
52 7 9 21
157 6 8 23
20. The deduction being on account of the rent for the first three months of the Baogali yew which had already been sued for when the deposit was made.
21. Now, if, as the learned Subordinate Judge says, there was a consolidation of the small tenancies into a tenure in 1266, and a Mokurari right was granted by a Pattah, there is no reason why the small Jamas which constituted the tenure should be mentioned with the name, area and rant of each such small tenancy separately, nine years after the consolidation. Then, again, if there was any such consolidation and specially if there was a Pattah, the words as per Jamabandi' would not certainly be stated. In such a case reference would be made to the Pattah. Lastly, if there was a Pattah granted in respect of 147 Bighas 13 Cottas of land at a Mokurari rent of Rs. 210 13-18 in 1266, how is it that in 1275 the area is described as 132 Bighas 8 Cottas 12 Chitaks and the rent thereof as Rs. 191-4-0, and 'waste lands, brought under cultivation', 15 Bighas 2 Cottas 4 Chitaks, at a rent of Rs. 18-9-1 are added to make up the area 147 Bighas 13 Cottas and the rent Rs. 209-13-18? If the rent was fixed at Rs. 210-13-18 in 1256, why should the same rent be arrived at in 1275 by taking into consideration the rent of waste lands brought under cultivation?
22. In the rent receipt (or account) for 1278 (Exhibit P-6) and for 1280 (Exhibit P 5) again, the Guzastha rent is stated to be-
Rs. 179 4 11
Batta Rs. 11 15 3
Waste Tardudi Rs. 18 9 18
209 13 18
so that 12 and 14 years after the alleged consolidation and the alleged Mokurari Pattah, the Guzastha rent is stated to be Rs. 179 4 11, and the rent of waste Tardadi, Rs. 18-9-18, is added (together with the Pattah) to make up the alleged Mokurari rent of Rs. 209 13-18. This is wholly inconsistent with a Mokurari Pattah having been granted in 1266. The learned Pleader for the respondent suggested that the fact that the Zemindar had sued for only one Kiat of rent, showed that there was dispute with the Zamindar, and the component parts of the tenure were stated in detail in the Chalan (Exhibit P-26) in order to show that the Jamas existed from the time of the Permanent Settlement, and the learned Pleader referred to the Chitas, Khatians and Jamabandi (Exhibit V series). But it does not appear that there was any dispute as to the rent payable, and in any case if there was a Pattah of the year 1236 (only 9 years before the deposit was made) by which the rent of the tenure was consolidated and fixed, the tenant would certainly have referred to the Pattab, and it would be wholly unnecessary to refer, to the Jama bandi, or to give the details of the small Jamas which made up the tenure. It is further pointed out that the Zemindar Hani Padmamani in a rent suit in respect of the Jama in the year 1675 described it as consisting of 147 Bighas 11 Cottas and bearing a rent of Rs. 209-13-18-1. (See decree, dated 20th November 1875, Exhibt D). This suit, however, was of the year 1282, which was about 7 years, after the Chalan (Exhibit P-26) by which rent was deposited in 1270 (1868), and some years after the accounts (Exhibits P 6 and P-5). It is possible that there was a consolidation of the small Jamas in 1282, as the decree (Exhibit D) indicates and as it is stated in the plaint that Ramjan Naskar had a Jama formerly bearing an annual rental of Rs. 209-12-17 Gandas in Mouza Balaria, which after undergoing alterations from time to time became the current Jama bearing a rental of Rs. 129-12 15 Gandas.' But the facts stated above are inconsistent with the grant of a Mokarari Pattah in 1266 and there is no suggestion that any Mokurari Pattah was granted at any time thereafter.
23. The second ground relied upon is that rant has been paid at an uniform rate for a long time. That question has to be considered, first, with reference to the small holdings before the alleged consolidation in 1266, and secondly, with respect to the Jama after the alleged consolidation in 12)6. The learned Counsel for the appellants contended that with respect to the small holdings the rant has varied from time to time, and we were referred to the variation in soma of them. For instance in the Chalan for deposit of rent in 1275 (Exhibit P-26) the Jama of Kristo Mongal Sirkar is described as 18 Bighas 17 Cottas at a rent of Rs. 27-3-13, whereas in the account for rent for 1260 (Exhibit P 25) the rent is stated as Rs. 32-5-18. The Jama in the name of Sitaram Kaora in 1265 was Rs. 10-1-18 (see Exhibit P 29), whereas in 1275 it was Rs. 13-3-2 (see Exhibit P 26). The Jama in the name of Rama Kishore in 1236 was Rs. 9-9-12, while in 1275 it became 9-14-0. The Jam, in the name of Radha Kant Gain in 1265 was Rs. 2-13-8, but in 1275 it was Rs 4-4-9, It is contended, however, on behalf of the respondent that, whenever there was any variation in the Jama, it was due to variation in the area. It is pointed out with reference to the holding in the name of Sitaram Kaora, that the Kobala executed by Sanyasi Kaora, the great-grandson of Sitaram, dated October 1834, shows that 6 Bighas 9 Cottas of land out of the Jama was sold to Rwijan, and the account of the year 1966 (Exhibit P 29) shows Rs. 10-1 18 to be the right of the holding, and the Chalan (Exhibit P 26) of the year 1275 shows that the area was 7 Bighas 6 Cotas and the rent was Rs. 13-3-2. The difference of Rs. 3 1 4 in the rent is, therefore, said to be due to the difference in the area, viz., 17 Cottas which must have been added to the holding between 1265 arid 12 5. But assuming that the difference of 17 Cottas in area was not due to difference in measurement, and was due to the addition of lands, the defendants must show that the rent of 17 Cottas would explain the difference in the rent, viz., Rs 3 1-4. The rent of 6 Bighas 9 Cottas being Rs. 10-1-18, the proportionate rent of a Bigba would be about Rs. 1 9-0 only. The rent of 17 Cottas of land, therefore, would be about R?. 1-5-5 only, and cannot explain the difference of Rs. 3 1-4. It may be said that (he rent was not proportionate but depended upon the class and quality of land, and that the 17 Cottas, having regard to its quality and the class of land to which it belonged, might have bean assessed at a higher rent, viz., Rs. 3 1-4. But that cannot be a matter of speculation. There being prima facie-a variation of rent which cannot be explained, by assigning a proportionate rent to the additional land (17 Cottas) it was for the defendant to show how the rent of 7 Bighas 6 Cottas came to be Ks, 13-3 2, when the rent of 6 Bighas 9 Cottas was Ra. 10-1-18 only.
24. With respect to the Jama standing in the name of Radha Kant Gain, which in 1265 was Rs. 2 13-8 and Rs. 4-4-9 in 1275, it is said that the increase is due to the addition of other lands. It appears from the Kobalas, dated the 7th Bhadra 1212 and 28th Jyst 1262, executed by the descendants of Radha Kant Gain, that 1 Bigha 4 Cottas and 15 Cottas of land out of the Jama were purchased by the said two Kobalas respectively. The receipt for 1260 shows the rent to be Rs. 13-8 1, and that for 1262 states the Jama as follows:
Rs. as. p.
Previous ... ... 1 13 8
Present ... ... 1 0 0
2 13 8
25. This apparently refers to the 15 Cottas purchased in 1262 and the account of 1265 (Exhibit P-29) shows the same rant. There is a Kobala in respect of 2 Cottas 8 Chitaks of lands dated the 4th Baisakh 1275, and it is recited in that Kobala that 4 Bighas 1 Cotta had been previously sold. The Chalan of 1275 states the area as 4 Bighas 1 Cotta and the rent as Rs. 4 4-9. Up to 1266 we have the Kobalas of 1242 and 1262 which covered only 1 Bigha and 19 Cottas, and the rent was Rs. 2-13-8. At that rate the rent for 4 Bighas 1 Cottas (leaving aside the 8 Cottas 8 Chitaks purchased in 1275) would be at least Rs. 510 0, but the rent of 4 Bighas 1 Cotta is stated in the Chalan of 1875 to be Rs. 4-4-9. Then, again, the rent of 4 Bighas 1 Cotta being Rs. 4-9-0, the rent of each Bigha works out at about one rupee-whereas the rent of 8 Cottas 8 Chitaka was Rs. 1 3-12 which works out at about Rs. 2-4-0 per Bigha. The 8 Cottas was, not doubt, homestead and Suna land, but we have not got the rates for the different classes of land.
26. The explanation attempted on behalf of the respondents is, therefore, open to some of the comments made in connection with the Jama standing in the name of Sitaram, viz., that it wasfor the defendant to explain the apparent variation, not merely by showing that there was variation in the area, but also by showing that the additional rent was assessed at some rates of rant fixed according to the class and quality of land. The difference in the Jamas standing in the names of Rim Kishore and Kristo Mangal has not been explained. We are referred to the variation in some other Jamas, but we think it unnecessary to discuss all of them. The learned Subordinate Judge, referring to the small Jamas mentioned in Exhibit P-25 which went to make up the Jama of 147 Bighas 11 Cottas of land, says in his judgment: 'But all these cannot be clearly traced back to the papers of the previous years. Moreover, in many cases there were changes in the rents and defendant had no explanation to give for many of these changes. Although the presumption might be applicable to many of the lands, it cannot be ascertained which lands these are.' We also think (hat though the variation of rents in respect of some of the Jamas might possibly be explained (as to which however we express no decnite opinion at present) there are others in which the valuation has not been explained by the defendant, and that being so, it cannot be said that the rent of the Jamas constituting the alleged tenure created in 1266 has been paid at an uniform rate.
27. We have next to see whether rent has been paid at an uniform rate since 1266, when a Pattah is alleged to have been granted consolidating the small Jamas into a big Jama of 147 Bighas 11 Cottas at a rent of Rs. 209 and odd. The Jama at the date of the present suit consisted of 90 Bighas 13 Cottas at a rant of Rs. 129-12-15, after under going alterations from time to time. It appears that one Nabin Ganguly purchased 4 Bighas out of the Jama, and the Thokas show that 29 Bighas 6 Cottas 8 Chitaks were acquired under the Land Acquisition Act, so that the total lands taken away from the Jama is about 33 Bighas 6 Cottas 8 Chitaks, and deducting the same from 147 Bighas 11 Cottas there should be 113 Bighas 5 Cottas left in the Jama, but as a matter of fact there is only 90 Bighas 13 Cottas of land. There is, therefore, a difference of about 23 Bighas which has not been explained at all. The learned Pleader for the respondent says that so long as the rent for the present lands is proportionate to the rent for 147 Bighas 11 Cottas, it does not matter what became of these 23 Bighas of land. But in order that the defendant might ask the Court to hold that uniform rent has been paid, he must show that the reduction in the rent was due to reduction in the area and, therefore, he mast account for the 23 Bighas. It is said that some lands were acquired for a rail way. Assuming that it was so, it is not shown how much land was taken up, and in any case there is no satisfactory explanation of the whole 23 Bighas, or that the rent of the 90 Bighas 13 Cottas now left oat of the Jama of 147 Bighas 11 Cottas bears a proportionate rent of Rs. 129-12-15 having regard to the class and quality of the lands. Then, again, in a rent suit brought by Kishori Lal in 1898 the Jama is described as consisting of 94 Bighas 6 Cottas 8 Chitaks at a rent of Rs. 135-7-1, whereas in the defendant's conveyance dated the 9th March 1900, though the area is described as nearly the same (94 Bighas 5 Cottas 14 Chitaks), the rent is stated to be Rs. 132-15-19. The learned Pleader for the respondent pointed out that there was mutation of names on the 8th August 1899 in the landlord's Sarista in respect of 4 Bighas of lands purchased by Nabin Ganguli, and that the rent receipts granted by Kishori in April 1900 to the defendant describe the Jama as 90 Bighas 13 Cottas at a rent of Rs. 129-12-15. It is accordingly contended that the description of the Jama in the defendant's conveyance is incorrect. But it does not appear what the exact amount of rent payable for the lands purchased by Nabin Ganguli was and it was for the defendant to satisfactorily explain the difference in the Jama as given in Kishori Ghose's rent suit and in the defendant conveyance respectively, it is to be observed that no papers have been produced in respect of the period of 20 years from 1285 to 1305.
28. The third ground relied upon is that Ramjan erected Pucca houses and Musjid and graveyard, and excavated tanks on portions of the tenure.
29. It appears from the schedule to the defendant's conveyance, dated the 9th March 1900, that the 'dwelling house Khas including garden, tanks and Musjid and Garh' are situated on 30 Bighas 7 Cottas and 15 Chitaks, cut of which 15 Bighas 7 Cottas 14 Chitaks are stated to be Lakheraj, and the remaining. 15 Bighas only are stated to be Kheraj (or rent paying), so that 15 Bighas Kheraj land are mixed up with 15 Bighas Lakheraj, and the whole are within one boundary or Garh. Unless, therefore, the houses, etc, are only on the Kheraj portion, no inference can be drawn in favour of the permanency of the tenure. We were referred on behalf of the respondent to the schedule to the plaint in a suit (No. 6 of 1898) for rent brought by Kishori Lai, as Dar-patnidar, against the representatives of Ramjan Naskar in 1898, in which the dwelling-house and tank are described as part of the tenure. The boundaries mentioned in the plaint differ in some respects from the boundaries spoken to by Bam Chandra Sarkar, witness No. 2 for the defendant in the present suit, as those of the Pucca house of the Naskars. Bhola Nath Ganguli, the witness No. 1 for the defendant, says: 'I know some lands of those in schedules Ka and Kha. I know the Bari of the Naskars, their house is a Pucca two-storied one. It stands on 7 or 8 Bighas of land. Part of it is Lakheraj and part Kheraj or rent paying. The rent-paying part is included in the Ka Jama of the plaint. The Naskars have a garden on 17 or 18 Bighas on three sides of their house. There is a Garh surrounding all. All this is in the Jama in schedule Ka. They had Musjids which still exist.' In cross-examination, however, he says: 'I did not enter the house of the Naskars. Seven or eight Bighas are enclosed by walls. There is a Khirki tank within the enclosure. There are courtyards within. I have said that the garden attached to the house is in Ka as I have seen it in the Kobala. I cannot say which plot of Kobala it would be. I have said that the Musjid is in Ka as it appears from our Kobala. 'The statement of this witness, therefore, to a large extent at any rate is based upon ,the description in the Kobala and a portion of the dwelling-house is even according to this witness on Lakheraj land.
30. If the lands on which the dwelling house and tank are situated and which are said to be Kheraj can be separated from the rest of the 30 Bighas which are comprised within one enclosure, and are not mixed up, there is no reason why in the defendant's conveyance, the dwelling house, tanks and gardens, etc., should have been described as 3 Bighas 'minus Lakheraj 15 Bghas' and the Kheraj stated to be 15 Bighas, nor why in the road-cess return, Exhibit U, the dwelling-houses, 15 Bighas, should be described as 'out of the family dwelling-house, garden and tank.' If the Kheraj and Lakheraj lands are mixed up, the landlord in suing for rent would describe the dwelling-houses, etc., as being 15 Bighas within the tenure.
31. In any case it is not clear that the dwelling-houses, etc, are on the Kheraj land. The survey map of 1847 mentions three Pucca houses in the Mouza, one of which was stated by both parties to be Ramjan's house. But the existence of a Pucca house so far back as 1817 goes against the case that the dwelling house is upon Kheraj land. Before the alleged consolidation and grant of Mokurari Patftah in 1266, there was a number of small Raiyati holdings, and even assuming that an occupancy Raiyat could erect Pucca buildings, no right of occupancy was recognised before Act X of 1859. It is, therefore, extremely unlikely that Ramjan should have constructed Pucca buildings on lands constituting small Raiyati holdings rather than upon Lakheraj lands which he had admittedly had within the same enclosure.
32. It is pointed out that there are Hats on the lands of the tenancy, and that a subtenant Bholanath has built a Pucca house. But the existence of Hats does not raise any presumption of permanency, and the Pucca house of Bholanath was built after, or about the time of, the institution of the suit.
33. The observations made above with regard to the dwelling-house would also apply to the Musjid and grave yard, and perhaps with greater force. As for the tanks the only evidence is that they are old tanks, and there is no evidence to show that they were excavated after 1266 when the Pattah is said to have been granted.
33. The fourth ground relied upon by the learned Subordinate Judge is that although the income was about Bs. 1,000 a year, no attempt was ever made to make it Khas or to enhance its rent. It appears, however, from the Thokas (collection papers) of the year (1295) that only a small portion of the rents was actually realised from the tenants, and in many cases there were very large, arrears extending for several years, and in some there was no payment at all it is contended on behalf of the defendant IM, a tenant would not overstate the annual value, became cesses would be levied upon such value. But having regard to the fact that under Section 20 of the Road Cess Act the landlord is precluded from suing for or recovering any rent not included in there turn no importance can he attached to the fact that the rents payable by the tenants were entered in the return submitted by Ramjan.
34. It appears from the oral evidence adduced on behalf of the defendant himself that the lands in the locality were in a bad condition before the making of sluice-gates by the Government.
35. Defendant's witness No. 2, who was formerly in the service of Ramjan Naskar and subsequently in the service of the Receiver, says that when Nabin Ghose got the Patni, some lands became water-logged and so crops could not well grow on them. The lands improved after the making of the sluice-gates by the Government. It is 3 or 4 years that they have been made. When Nabin Ghose first took the Patni the tenant quarrelled with him. I cannot say why he made the Darpatni, and why also he Rave up the Patni.' Gopal Chandra Sardar (witness No. 5), who was formerly in the service of Kishori Lal Ghose and whose father looked after the cultivation of Ramjan Naskar, says: 'When Nabin Ghose took the Patni, the tenants combined and made a Dharraagbat against him. It is only about 3 years that sluice gates have been made, since then our lands have become fertile. During Nabin Ghose's time rents were not well realised.' The witnesses for the plaintiff also 'say the same thing. Atul Chandra Ghose (witness No. 5), the Naib of the plaintiffs, says that 'the Mahal was in a bad condition, so we did not sue for Khas possession of the land. Much land was then lying Patit...the condition of the Mahal was bad till 1315. Then the sluice gatts were made. The whole Pargannah was in a bad condition.' Tarak Nath Dutt also in the plaintiff's service says: 'During Nabin Ghose's time the condition of the Mahal was bad. There was very much litigation between him and the tenants. There was at that time no drainage, and hence the lands were for the most cart useless. He was reduced to great difficulty and became indebted on account of the Patni. He had to pay heavy rent to the Zamindars, but he could not realise the tenants' rent. Holdings made Khas could not be let to tenants.' Kali Kumar Bose (witness No. 13), who was formerly in the service of Nabin Ghose, says: 'All the drainage was stopped and hence the lands became almost useless. The tenants holding's were mostly bought up by the landlord. Those Khas lands also could not be let, as the boundaries were generally found to be false and no tenants could be available.' It also appears from the judgment of the Subordinate Judge, dated the 21st December 1906, in the proceeding for setting aside the sale of the Patni, (when it was purchased by the plaintiffs) that the Patni was a 'losing concern all along.' It may be, as contended by the learned Pleader for the respondent, that the failure to realize rents was partly due to the combination among tenants, but evidence quoted above clearly shows that the lands in the locality were until recently in a very bad condition. The evidence quoted above relates to the Patni, and not specially to the tenure of Ramjan Naskar, but the evidence goes to show the condition of the lands in the locality. It is dear that before the sluice gates were opened the lands were in a bad condition, and lands which became Khas could not be let out to tenants. Under these circumstances no landlord would think of making the tenure Khas or attempt to enhance its rents, and the circumstances sufficiently explain why the rent of the tenants was not enhanced. It may be observed that the mere fact that rent has not been changed for along time by itself is not sufficient to show that the original contract was for payment of rent by the tenant at a fixed rent for ever. See Jagabandhu Sethi v. Magnamoyi Dassi 36 Ind. Cas. 884 : 22 C.W.N. 89 at p. 95 : 24 C.L.J. 363 : 44 C. 555.
36. As already stated, had there been a Mokurari Pattah in 1266, it would have been mentioned in the Chalan for deposit of rent (Exhibit P-26). Then in the land acquisition proceedings (which will be presently referred to), there was no mention of Mokurari. In the road cess return (Exhibit U), upon which some reliance is placed by the defendant, though the tenancy is described as 'Mourasi (ancestral) purchased Patni,' there is no mention of Mokurari. Then again in the plaint in Rani Padmamani'a suit (Exhibit D), used in evidence on behalf of the defendant, though a consolidated rent was sued for, it was not stated to be Mokurari, and lastly in Kissori's suit 'Exhibit E) not only was Mokurari not mentioned but the Jama was described as a 'Ticca Jote.' The learned Pleader for the respondent referred to Mitra's Land Tenures in Bengal, page 207, to show that a Ticca tenant in 24 Pergannahs has a permanent interest; but that the word is not used in that sense in the locality appears from the evidence of the defendant's own witness No. 2 Ham Chandra Sana, who speaking of his own Jamas says: I have permanent rights to the lands. They are not Ticca Jamas.'
37. The origin of the tenancy is known, viz., a number of small Raiyati holdings, and we have seen that the grounds upon which the learned Judge proceeds to hold that there was a Mokurari grant are not borne out by the facts proved.
38. Oar attention has been drawn on behalf of the appellants to some evidence which doss not appear to have been taken into consideration by the Court below. It appears that in 1882 about 29 Bighas of lands of certain Jotes were acquired under the Land Acquisition Act. There are several awards on the record, and they show that, the Jotedars claimad under Mourasi rights, but failed to support their claims or to show that they had any heritable or transfer-able right to the lands. It is stated in the await in consideration, however, of their length of tenancy certain sums in the way of compensation have been allowed them for the loss of their Jotes irrespective of the amount payable to the Zemindar and Patnidar on account of their proprietary rights in the land, and this not as a matter of right bit rather as a concession.' Fazkar Rahman Naskar, a son of Ramjan Naskar, was a party to the proceedings, as also the Receiver to their estate. It is contended on behalf of the respondent that there is nothing to show that these proceedings related to the lands of the Belaria Jama, and it is pointed out that the awards were objected to on his behalf in the Court below. It does not appear, however, on what grounds the awards were objected to and that any objection was taken that their did not relate to the lands of the Jote in suit. On the other hand the fact that lands of schedule Ka were acquired under the Land Acquisition Act, is relied upon on behalf of the defendants for explaining the variations in the area of the tenancy, and the Court below also relies upon that fact for the said purpose to show that the lands were included in the Balaria Jama. It is true that these proceedings cannot decide questions of title, and that the Receiver, who was nailed upon to adduce proof in support of his claim and failed to do so, was allowed 'the option of substantiating his claims if any in the Civil Court.' But Fazlur Rahman, a son of Ramjan Naskar, was also a party to the proceedings, and the awards show that the right of the Jotedars was asserted in these proceedings and was not recognised.
39. Then it appears from the evidence of the plaintiffs' witness Kali Kumar Bose, who was Mohurir under Nabin Ghose (the Patnidar) and Am-Mukhtear of his son, Kishori Ghose (the Dar-patnidar), that one Haripada went to him to pay rent on behalf of the defendant, Anath Bandhu Pal, after his purchase, and asked for Dakhila mentioning the purchaser as the tenant, that the witness refused to do so, and said that he would retain the name of Ramjan Naskar as tenant, and described Anath Bandhu only as Marfatdar, and that sometime afterwards the defendant and Haripada came and consented to pay rent and take Dakhila with Ramjan's name as the tenant. It is pointed out on behalf of the respondent that Kali Kumar was examined on the 7th February, and Anath Bandhu was examined on the 2nd February, but no question was put to the latter on the point. That appears to be so, but Kali Kumar was not cross-examined with reference to the above statements made by him. The effect of the use of the word 'Marfatdar' may vary according to the circumstances of each case on a consideration of all the facts of the case, but having regard to the fact that rent receipts were asked for in the name of the purchaser and the landlord expressly refused to grant receipt in his name, and gave receipt in the name of the old tenant (the purchaser being, described merely as Marfatdar) negatives any idea of recognition of the purchaser as the tenant.
40. The learned Subordinate Judge refers to the plaint in a suit by Kishori (Dar-patnidar) for rent of 1301--1304 as showing that Fazlur Rahman along with two other persons were sued as tenants. But they were sued as Sarbarakars in possession. Fazlur Rahman was not sued as heir of Ramjan. The latter left a widow and two sons, one of whom was Fazlur Rahman, and the widow and the other son were not made parties to the suit. Nabin Ganguli was also made a party to the suit but it is stated by Kali Kumar Bose that as there was inconvenience in realizing rent from the Receiver and Nabin Ganguli was a monied man, therefore, Nabin was made a party.
41. The defendant says that he was recognised by the plaintiffs in the year 1317 by the Dakhila, dated 9th Aswin 1317. His case is that the plaintiffs' Gomastha at first took rent and granted Dakhila recognising him as their tenant, but a misunderstanding having arisen subsequently, their Gomastha fraudulently took back the Dakhilas 15 or 16 days afterwards and changed the name of Hari Das Pal into that of Ramjan Naskar. The plaintiffs' Gomastha, on the other hand, said that it was the first day on which he began work as Gomastha, and that he wrote out the Dakhila in the name of Hari Das Pal as tenant without oaring to see the Thokas which he had with him, but that the witness Atul Chandra Ghose who was present, having asked him to consult the Thokas before granting Dakhilas, he referred to them and finding the name of Ramjan there as the tenant, changed the name then and there. The learned Subordinate Judge was of opinion that neither of these stories was true, that the real reason for the change had been suppressed by both parties, but that the Dakhila was granted with the name changed at the time it was granted. We think that the name of the tenant Was changed at the time the Dakhila was granted, and the fact of the change goes to show that the defendant was not recognised at tenant.
42. On the whole we are of opinion that the defendant has failed to prove that the Jama mentioned in schedule Ka was a permanent Mokurari tenure. It is contended, on behalfof the respondent that even if it is not a permanent tenure, the plaintiffs would still not be entitled to get Khas possession unless it is proved that it is non-transferable and that the onus of proving non-transfer-ability of a tenure is upon the landlord Referenda was made to certaind cases, but we do not think that they support the contention. In Doya Chanel Shaha v. Anund Chunder Sen 14 C. 382 : 7 Ind. Dec. (N.S.) 253 it was no doubt held that there is no presumption that any tenure held is not a transferable tenure, and a landlord who sues for Khas possession on the ground that a tenure sold was not transferable must establish his case as an ordinary plaintiff. That case, however, was not followed in the subsequent case of Kripamoyi Dabia v. Durga Govind Sirkar 15 C. 89 : 7 Ind. Dec. (N.S.) 645. There the defendant sat up a permanent and transferable tenure and the learned Judges held that if the defendant proved it, and not otherwise, he would be entitled to be in possession. They were of opinion that the question was concluded by the authority of the Privy Council in the case of Raja Sahib Perhlad Sein v. Maharajah Ravender Kishore Sing 12 M.I.A. 292 at p. 331 : 2 Suth P.C.J. 225 : 2 Sar. P.C.J. 430 : 20 E.R. 349 as also by several other cases decided by this Court In Prahlad Sein's case 12 M.I.A. 292 at p. 331 : 2 Suth P.C.J. 225 : 2 Sar. P.C.J. 430 : 20 E.R. 349 the Judicial Committee observed: 'The appellant is the Zemindar; as such he has a prima facie title to the gross collections from all the Mouzas within his Zemindari. It lay upon the respondents to defeat that right by proving the grant of an intermediate tenure.' Referring to that case the learned Judges in Kripumoyi's case 15 C. 89 : 7 Ind. Dec. (N.S.) 645 remarked: No doubt what was set up by the defendant in that case was the grant of an intermediate tenure, but this circumstance does not make any difference in the principle which their Lordships laid down, and which we are bound to apply in this case. And applying that principle, it seems to us that unless the defendant can prove the tenure set up by him, viz., a permanent and transferable tenure, the plaintiff, the admitted landlord, is entitled to enter into possession. And this view has been uniformly taken by this Court, as would appear' from as examination of the cases quoted above.'
43. Some reliance was placed upon the case of Banee Madhub Banerjee v. Joy Kishen Mookerjee 7 B.L.J. 152 at p. 157 : 12 W.R. 495, but the tenure in that case was one for building purposes, and it was proved that according to the custom of the district (Hooghly) it was transferable. We have discussed the question on the assumption that the tenancy is a tenure, but we have already found that it is not a tenure.
44. It was further contended that the tenancy is non agricultural because there are some homesteads and tanks on the land. We have already held that it was not dearly proved that the homestead or tank is on the Kheraj portion (the tenure) and is not on Lakheraj lands. But even if the homesteads or tanks are situate on the lands of the tenancy it would not make the tenancy a non agricultural one, it being admitted that the tenancy consisted of small Raiyati holdings, at any rate, up to 1266. Assuming, however, that the tenancy is non-agricultural, the provisions of Section 108, Clause (j), of the Transfer of Property Act do not apply to the tenancy, as it was created before that Act was passed. In the case of Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 Maclean, C.J., and Mitra, J., held that the incident of non-transfer-ability is common to tenancies from year to year of homestead lands created before the passing of the Transfer of Property Act, in the absence of a custom to the contrary, and followed the case of Hari Nath Karmakar v. Raj Chandra Karmakar 2 C.W.N. 122 on the point. With reference to the observations of Peacock, C.J., in Banee Madhub's case 7 B.L.R. 152 at p. 157 : 12 W.R. 495, which supported the opposite contention, the learned Judges observed, they were unnecessary for the decision of the case, and we doubt whether they accurately state the law as now understood in Bengal.'
45. The cases relating to the question of heritability of non-occupancy holdings cited before us have no bearing upon the present question, nor the case of Khitish Chunder Roy v. Bhikan Mamud Pramanik 25 Ind. Cas. 530 : 19 C.L.J. 448 in which the lease was one for 1,05 years for general purposes and which was held to be assignable not only upon that ground but also because the conduct of the parties pointed to its having been regarded on both sides as transferable and treated as such. Having regard to the authorities, we must hold that it was for the defendant to show that the tenancy (which is non permanent) is transferable, and that he has failed to do so.
46. The learned Pleader for the respondent next contended that that he is entitled to rely upon the presumption laid down in Section 50 of the Bengal Tenancy Act, the principle of which has been held to apply to suits for ejectment see Nityananda Pal v. Nanda Kumar Chowdhury 10 Ind. Cas. 163 : 13 C.L.J. 415 and Fran Krishna Saha v. Mukta Sundari Dassya 21 Ind. Cas. 544 : 18 C.L.J. 193. But upon the defend-ant's own case the tenure came into existence only in 1266, and no question of presumption that it was held at an uniform rent from the time of the Permanent Settlement can arise. It is said that the constituent parts of the tenure were being held from a very long time at an uniform rent, and that even if there is any variation in the rents of any of the small holdings which constituted the tenure, only such Jama may be left out of consideration; but once it is shown that any of the constituent parts of the tenure was not held at an uniform rent, no presumption can arise as to the tenure having been held at an uniform rent from the time of the Permanent Settlement. As to whether such a presumption can arise with regard to the small Raiyati holdings which constituted the tenure (i.e., with regard to the alternative case set up in paragraph 5 of the written statement), the question will be considered later on. So far as the defendants' case that the tenancy is a tenure is concerned, no presumption can arise that it has been held at an uniform rent or rate of rant from the time of the Permanent Settlement.
47. Three other contentions raised on behalf of the respondent remain to be considered. The first is that a Musjid stands on a portion of the tanure, and the Musjid was not included in the defendant's conveyance. It is in the possession of the old tenant, and it is accordingly contended that the plaintiffs cannot obtain Khas possession of the lands. It, no doubt, appears from the conveyance that the Musjid together with the land on which it standi was encluded from the conveyance, and Rim Chandra Sarkar, the witness No. 2 for the defendant says that the Musjid and the grave-yard to the south of the Musjid an in the possession of Fazloo Mian, one of the heirs of Ramjan. The learned Subordinate Judge was accordingly of opinion that the entire tenure had not been sold and the plaintiffs could not, therefore, eject the defendant. It appears, however, that the defendant purchased the tenure agreeing to pay the entire rent thereof, and no portion of the rent was payable by the vendors who were left in possession of the Musjid and grave-yard, which could not be possibly used in any way by the vendee who was a Hindu. As for the family dwelling-house and lands and tanks appertaining thereto, they were expressly included in the conveyance, the vendors being allowed to reside in the house for a period of (en years free of rent as stated in the conveyance.
48. The next point raised on behalf of the respondent is that the decree in execution of which the Patni was purchase ed by the plaintiffs is not a rent decree, and the sale held there under cannot have the consequences attaching to a sale held under a decree for rent under the Bengal Tenancy Act, so that the Patni tenure was not sold free of incumbrances and the Dar patni still subsists, and that the plaintiffs, therefore, have no right to obtain Khas possession of the lands. This contention is based upon two grounds. The first is that certain drainage charges were included in the decree. But under Section 1, Clause (5), 'rent' includes also money recoverable under any enactment for the time being in force as if it was rent, and money payable under Section 42(a) of the Bengal Drainage Act (VI of 880) is money recoverable as rent within the meaning of the section. See Mon Mohini Dasi v. Priya Nath 8 C.W.N. 640. The learned Subordinate Judge has rightly disallowed the contention, and pointed out that the plaintiffs might have shown that the drainage charges had been paid by their mother (the executrix) and were recoverable from the Patuidar, bad the objection been taken specifically on this ground in the defence. The other ground was ml taken in the lover Court, and is based on the fact that Mal, Mourasi Mokurari, and Lakheraj Brahmatter lands were included in the Patni lease. It is contended that Rs. 19,436 is the real Patni rent, and separate rents are mentioned for the other classes of lands such as Lakheraj, Brahmatter and Mourasi Mokurari, etc., and that, therefore, the decree was on account of three separate tenures, viz., a Patni, and tenures under Lekheraj and Mourasi. We were referred to a number of cases in support of the proposition that a sale held under a decree for rent on account of several tenures or holdings is not a sale under the Bengal Tenancy Act. It is unnecessary to consider these cases, because we are of opinion that there are not several tenures included in the Patni lease. There is only one tenure at a rent of Rs. 21,524-2-0 although in arriving at the total rent, the rents fixed on account of the Patni and those for the Lakheraj and the Mourasi lands are separately mentioned. The decree also after referring to the rents payable for the different classes of land states the aforesaid Tarafs, etc., bearing a total Patni Jama of Rs. 21,524-2-0.' There can certainly be a tenancy in respect of the several classes of lands mentioned above, and we have no doubt that there was only one tenure created by the Pattah at a total rent of Rs. 21,524-20. We are accordingly of opinion that the tenure could be sold under the provisions of Chapter XIV of the Bengal Tenancy Act, and that there is no force in the contention of the respondent.
49. The third ground taken is that the decree for rent passed only the right, title and interest of the Patnidar because there was an agreement (prior to the rent gale) to purchase the Patni at Rs. 18,000 and it was purchased at the rent sale accordingly. It does not appear, however, that there was any such agreement. What Manmatha Nath Mitter, one of the plaintiffs', says is that 2 or 3 days before the sale there was a talk between him and the Patnidar's (Kissori Ghose's) manager that he would buy up the Patni for Rs. 18,010. The judgment-debtor would naturally try to get bidders in order that the property might fetch a proper price at the sale, and if the decree-holder on being approached by the judgment-debtor expressed his intention of bidding for the property up to a certain amount, we do not think tin the absence of any fraud of which there is no suggestion) that it would deprive the purchaser of the benefit attaching to a sale under the Ant or render it a private sale. The case of Uma Charan Mandal v. Midnapore Zemindary Co. 26 Ind. Cas. 182 : 19 C.W.N. 270 : 20 C.L.J. 11 has no application to the facts of the present case. There a tenure-holder having offered to sell his interest to the Patnidar, the latter agreed to pay the price asked only if the tenure was rid of the interest of subordinate tenure-holders, and it was arranged that the tenure holder would make default in paying rent and that the Patnidar would sue him for arrears of rent, and put up the tenure for sale in execution of the decree, and that a person who had no intention of buying the property would be made to bid up to a figure approaching the price settled, which thereupon would be offered by the Patnidar, and the sale was effected as arranged, and it was held that the transaction should be viewed as a private sale, which in fact it was, the form only of a Court sale having been gone through and abused with the object of defrauding the under-tenure-holders.
50. It is finally contended on behalf of the respondent that even if it be held that the Jama is not a permanent tenure, the alternative case set up in paragraph 5 of the written statement should be considered. In the fifth paragraph of the written statement it was stated: 'If in the decision of the Court it be established that the said Ramjan Naskar and his heirs had no Mourasi Mokurari tenure in the said two Jamas in suit, even then this defendant submits that inasmuch as the said Ramjan Naskar and his predecessors and successors had for a long time from before the Permanent Settlement been in possession of the said Jamas on payment of an unchanging and uniform rate of rent, so they acquired the right of a 'Raiyat at fixed rate' in regard to them and since the said right is transferable according to law and custom, this defendant has acquired a good title thereto by virtue of his purchase and the plaintiffs are not competent to make any claim for Khas possession in regard to them.' The second issue in the case was, 'was Ramjan Naskar Mourasi Mokurari tenure-holder in respect of the lands mentioned in the schedules Ga and Gha in the plaint, or in the alternative was he Raiyat at fixed rates in respect thereof?' The learned Subordinate Judge in dealing with the question of presumption observes as follows: 'Although the Chalan of 1256, P-28, does not show the small tenancies which went to make up the first tenancy of 147 Bighas 11 Cottas of land, they are shown by another paper, Exhibit P-25, which gives a long list. But all these cannot be clearly traced back to the papers of the previous years. Moreover, in many cases there were changes in the rents and defendants had no explanation to give for many of those changes...so it cannot be said that all the Jamas which went to make at this large tenancy had been existing from long before and that there was no change in the amounts. Although the presumption might be applicable to many of the lands, it cannot be ascertained which lands these are.'
51. We have been referred to the Khatians (Exhibit VI) and Goswara pipers (Exhibit V-2) of the year 1190 (1783-8A), i.e., papers prior to the Permanent Settlement. They contain the names of some of the tenants whose names are mentioned in the Chalan of 1275 (Exhibit P-26) and the Jamas in whose names are said to have been consolidated into a Mokurari tenure in 1266. Of course the mere fact that the names of some of the tenants 'agree would not be sufficient, unless the Jamas mentioned in these papers prior to the Permanent Settlement can be identified with the present Jamas. If, however, any of these Jamas can be identified, and if it can be proved that the rent or rate of rent of any such Jama has not been changed from the time of the Permanent Settlement, or that the circumstances are such as to raise the presumption that the rent or rate of rent has remained unchanged from the Permanent Settlement, we think the plaintiffs are not entitled to get Khas possession in respect of such Jamas. It may be said that the defendant having-fought out the case in the Court below on the footing that the small Raiyati holdings had been consolidated in 1266 into a permanent Mokurari tenure, should not now be allowed to have the case tried on the ground that the small holdings were holdings at fixed rates. But the alternative case, viz., that these small Jamas were holdings at fixed rates was distinctly taken in the written statement, and an issue was raised on the point. The correctness of the finding of the learned Subordinate Judge on the point has been challenged on behalf of the respondent. As stated above, the names of some of the Jamas appear in the Khatians and Goswara papers which are more, than 130 years old (1783), and having: regard to all the circumstances we think that for the ends of justice the question whether any of the Jamas can be identified should be gone into.
52. The lands of schedule Kha situated in Mouzi Bankipore form the subject-matter of Appeal No. 258 of 1914. The Court below held that the lands did not constitute a permanent tenure, and gave a decree to the plaintiffs in respect of these lands. This appeal is, therefore, preferred by the defendant.
53. The learned Subordinate Judge's finding with respect to this Jama is as follows:
As to the other tenancy the facts are same what different. It is at Bankipore which was not Ramjan's own village'. There is no proof that he raised any Pucca structure here as on the other tenancy. The evidence is not also clear that he made any valuable tanks on it. He does not seem to have oared to take any Pattah for it, though some of the component parts of this also were very old tenancies. It is not so old as the other one, having come into existence in a consolidated form in 1275. Though its area was larger, the lands were not half so valuable as those of the other tenure. This would appear from the cess return already referred to. So in the case of this tenancy I find no legally sound basis for finding that this too was permanent.
54. The Chalan for deposit of rent of 1275 in respect of these lands (Exhibit P-27) mentions the small Jamas constituting this tenancy, and shows 152 Bighas 5 Cottas 6 Chitaks of land and the rent Rs. 207-1-1, and the same area and rent appear from the plaint in a rent suit by Kissori in 1898 (Exhibit E). In the rent receipt, dated 16th Assin 1308 (October 1901), Exhibit A 13, the area was given as 149 Bighas 10 Cottas 6 Chitaks and the rent as Rs. 203-10-11, and that is the present area and rent. Nabin Ganguli purchased some lands of this Jama also, and it is said that Borne other lands were acquired oat of this Jama, and that that accounts for the variation in the area and rent. But no presumption can arise that the tenure was held at an uniform rent from the time of the Permanent Settlement, because the alleged consolidation in 1275 shows the contrary. Then the account of 1266 (Exhibit P-28) shows the rent of the Jamas in Bankipore amounted to Rs. 224 2-171, whereas the Chalan (Exhibit P-27) shows the rent as Rs. 207.1-1. The defendants have filed nine rent receipts of the period between 1260 and 1275, arid it appears from these receipts that there was variation of rents, at any rate, in respect of some of the small Jamas, and that some of the Jamas mentioned in the Chalan, P. 27, are not mentioned in the rent receipts before 1275.
55. The observations made in connection with the lauds of schedule Ka in Balaria apply (in so far as the questions are common) to these lands of schedule Kha and need not be repeated. They apply with greater force with respect to this Jama as there was no consolidation of the small Jamas in 1266, nor even any mention of any Mokurari Pattab, nor are there any Pucca structures, Musjid, graveyard, or large tank on this Jama as in the other. In fact the learned Pleader for the defendant admitted that he could not place the evidence in this case as high as in the other case, and we think that with regard to these lands also, the defence, in as far as it is based upon the lands being a permanent Mokurari tenure, must fail.
56. So far as the small holdings are concerned, which were consolidated in 1275, the names of a few (a very few) of the tenants in whose names the Jamas stood, can be identified with the names appearing in the Khatians and Goswara papers of the period prior to the Permanent Settlement (Exhibit V series), and the observations made in connection with the alternative case set up in the fifth paragraph of the written statement with respect to the lands of Schedule Ka apply to these lands also. Under the circumstances we make the same order with regard to these lands as we have made in connection with the lands of Schedule Ka.
57. We now come to the lands of Schedules Ga and Gha. The defence with regard to these lands was that they do not appertain to the plaintiffs' Zemindari No. 156, that the plaintiffs neither have nor had any right to hold Khas possession of the same on any ground whatsoever, and that even if it be found that they are Mai lands included within the Taluk, Ramjan Naskar and his heirs having enjoyed and possessed them for long upwards of 12 years adversely to the plaintiffs, they Ramjan and his heirs) had acquired a good title by adverse possession and the defendant by his purchase had acquired a good title thereto. The defendant further pleaded that the suit for Khas possession was barred by limitation, 12 years having passed from the date of the defendants' purchase in July 1899.
58. The issues framed on the 18th December 1911 in connection with these lands were as follows: fifth, are lands described in the Schedules Ga and Gha of the plaint situated within the plaintiffs' estate Touzi No. 156 of the Collectorate of 24-Pargannahs; sixth, have the defendants any right to the lands described in Schedules Ga and Gha of the plaint by adverse possession against the plaintiffs; seventh, is the plaintiffs' claim for Khas possession barred by limitation, the suit being brought after 12 years from the defendants' purchase.
59. A Commissioner was appointed on the 29th February 1912 to ascertain by measurement whether the lands appertained to the plaintiffs' Zemindari No. 156, and whether they are covered by the defendant's purchase. The Commissioner was engaged for about a year and his final report was submitted on the 6th February 1913. He reported that all the lands of Schedules Ga and Gha, with the exception of five plots, appertain to the plaintiffs' estate. The case was then fixed for hearing on the 25th February 1913. The defendant obtained adjournment of the case from time to time until the 13th May. Up to this time there was no suggestion that these lands were within the estate, the defendant's case being that the lands were not included in the plaintiffs' Zemindari. On the 2nd June 1918, however, the defendant applied for amendment of issues, and the words are the lands of Schedules Ga and Gha the Mai lands of the plaintiffs' were added in the fifth issue as originally framed.
60. The learned Subordinate Judge held that it was for the plaintiffs to show that these lands were in the possession of the Zamindar when the Patni was created, and as the plaintiffs had failed to show that the suit was barred by limitation.
61. The Patni appears to have been granted in 1881 in respect of the entire Zamindari; but unless the Zamindar was in possession of the lands when the Patni was created, he or his successors in interest (the plaintiffs) cannot claim possession, although the plaintiffs purchased the Patni at a sale for arrears of rent. It is contended on behalf of the plaintiffs that there is no suggestion in the defence of the defendant that his predecessors in title had bean in possession at any time prior to the creation of the Patni (1881), their defence being that the lands did not appertain to the plaintiffs' Zamindari at all, and that even if they did, Ramjan Naskar and his heirs had acquired a title by adverse possession for 12 years, and in these circumstances the plaintiffs could not be called upon to show that the Zemindar was in possession before the creation of the Patni. It is further contended that the suit is not based on the allegation of possession and subsequent dispossession and, therefore, does not come under Article 142 of the Limitation Act, but comes under Article 144 and it is for the defendant to show that the adverse possession commenced before the creation of the Patni, and the case of Secretary of State for India v. Chelikani Rama Rao 35 Ind. Cas. 905 : 20 C.W.N. 1311 : 31 M.L.J. 324 : (1916) 2 M.W.N. 224 : 39 M. 617 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 197 (P.C.) and certain other cases were relied upon. On the other hand it is contended on behalf of the defendant that the definition of 'incumbrance' in Section 161 of the Bengal Tenancy Act shows that it is some right created by the tenant in limitation of his own right; in the case of adverse possession it is created by the laches of the tenant, but where the adverse possession commenced before the creation of the tenancy, it would not be in limitation of the tenant's right, it would be adverse to the landlord, and it is not an 'incumbrance' which the latter can avoid as purchaser of the Putni at a rent sale. The incumbrance which the purchaser at the rent sale can avoid is an incumbrance which came into existence subsequent to the creation of the lease (in the present case the Patni tenure), that to is, therefore, for the plaintiffs to show that the incumbrance came into existence after the grant of the Patni, and reliance is placed on the case of Kalikananda Mukherjee v. Bipro Das Pal Choudhuri 26 Ind. Cas. 436 : 19 C.W.N. 18 at p. 21 : 21 C.L.J. 265. It is further contended that even if the plaintiffs are entitled to avoid the incumbrance, it must be done in accordance with the provisions of Section 167 of the Bengal Tenancy Act, which the plaintiffs have admittedly not done. The plaintiffs, however, do not admit that the defendant or his predecessors-in title have been in adverse possession for 12 years, or that the defendant has any incumbrance, which it is necessary for the plaintiffs to avoid; it is contended that they are bound to annul only incumbrances created by the tenant, viz., the Patnidar, which they have done, and-that they are not bound to annul any incumbrance (adverse possession) of the defendant which was not created by the Patnidar but by the Dar-putnidar. If the adverse possession be treated as adverse possession against the Patnidar, a further question may arise whether the person who may have acquired a statutory title by such adverse possession does not stand in the same position as an unrecorded co-sharer of the Patnidar, and whether such right did not parts at the rent sale. Before, however, any of these questions are gone into, there, should be a finding as to whether the defendant and his predecessors in interest were in adverse possession for 12 years before the sale, at which the plaintiffs purchased the Patni. The learned Subordinate Judge has not considered the evidence as to adverse possession and has not come to any finding on that point. Before deciding the question of limitation or the question of the right to set aside incumbrances, therefore, we think that there should be clear findings by the Court below on the question of possession.
62. So far as the 7th issue is concerned viz., whether the plaintiffs' claim for Khas possession having been brought more than 12 years after the defendant's purchase is barred by limitation, it must be decided against the defendant. The defendant's conveyance is dated the 9th March 1900, but it appears that he obtained possession from July 1899, and the present suit was instituted by the plaintiffs more than 12 years after July 1899. The plaintiffs, however, purchased the Patni at the rent sale on the 15th August 1903 which is within 12 years of the suit. The adverse possession (if any) of the defendant was arrested by the sale of the Patni on the 15th August 1906, see Satish Chandra Sinha v. Munjanali Debi 15 Ind. Cas. 869 : 17 C.W.N. 340: it was, therefore, only for 7 years, and his title had not been perfected before the Patni was sold. So far as the defendant's own possession is concerned, therefore, the plaintiffs' claim is not barred. Whether his predecessors-in-title were in adverse possession for the statutory period is a question which we will have to decide.
63 In the result we hold that the defendant has failed to show that he has any permanent Mokurari tenure in the lands of Schedules Ka and Khs; and with regard to the defence based upon the alternative case sat up, viz., that the small tenancies constitute Raiyati holdings at fixed rates, the cage is remanded to the Court below for distinct findings upon the following points:
1st.--Whether any of the Jamas in Mouza Balaria mentioned in the Chalan of 1275 (Exhibit P 26) or any of the Jamas in Muuza Bankipore mentioned in the Chalan of 1275 (Exhibit P-27) can be identified with the Jamas mentioned in the Khatian or other papers prior to the Permanent Settlement. Whether the lands of any such Jama can be traced and identified.
2nd.--Whether the rent or rate of rent of any such Jama has remained unchanged from the time of the Permanent Settlement.
3rd.--Whether upon the facts proved and the circumstances of the case, any presumption arises with respect to any such Jama that the rent or rate of rent has remained unchanged from the Permanent Settlement and if so, whether such presumption has been rebutted.
64. With respect to the lands of Schedules Ga and Gha also, the case is remanded to the Court below for distinct findings upon the questions.-
1st.--Whether the defendant and his predecessors-in-title had been in possession for 12 years of the lands of Schedules Ga and Gha prior to the date of the sale at which the plaintiffs purchased the Patni; and was such possession adverse.
2nd.--Whether such possession, if any, commenced from before or after the creation (a) of the Patni, (b) of the Darpatni, and (c) of the Ijara.
65. The findings are to be arrived at upon the evidence on the record.
66. As the litigation has bean pending for a very long time, we direct the Court below to take up the case at once, and return its findings to this Court within two months from the date of arrival of the records in that Court. The cass will be mentioned before us as soon as the findings arrive in this Court.