1. The subject-matter of the litigation, which has culminated in this appeal, is a large tract of alluvial land formed by the recession of the fiver Padma and recorded as an estate on the revenue roll of the Collector of Rajshahi. The land became fit for cultivation more than a quarter of a century ago and was occupied by Robert Watson & Co. There is no evidence to show that the Watsons entered into an engagement with the Collector before they took possession; but, as is not unusual, they occupied the land and were accepted as tenants; Nityanund Ghose v. Kissen Kishore W.R. 1864, Act X, Rul. 82. M. 17 Ind. Cas. 587 : 17 C.L.J. 431 : 17 C.W.N. 348, Kali Prosamna Das v. Bhagaban Mali (2), Birendra Kisore v. Gagan Chandra 30 Ind. Cas. 502 : 22 C.L.J. 132, Gagan Chandra Chuckerbutty v. Birendra Kisore Manikya 30 Ind. Cas. 931 : 22 C.L.J. 135. The land was assessed and the dues were periodically paid by them direct to the Collector. In 1901, the revenue authorities made a five-year malikana settlement of the lands with the plaintiff who was one of the proprietors of an adjoining estate. There can be no doubt that the Revenue Authorities were competent to create such an intermediate interest between the Crown and the Watsons; Johar Mull Bhutra v. Bhufendra Nath Basu 17 Ind. Cas. 108 : 34 C.L.J. 79 : 49 C. 495 : (1922) A.I.R. (C.) 412. On be expiry of the five year term, the settlement with the plaintiff was renewed for another term of five years On the expiration of this second term, the settlement was renewed for shorter periods from time to time, and at the date of the commencement of this litigation, the plaintiff held under a settlement for one year only.
2. Meanwhile, on the 23rd December 1902, the Watgons had transferred their interest to Ronaldson Gordon Macdonell, and on the 3rd December 1906, the latter transferred his interest to the defendant Midnapore Zemindary Co. On the 3rd December 1918, the plaintiff instituted this suit for ejectment of the defendant Company as trespassers on the allegation that the interest of the Watsons was non-transferable. The Subordinate Judge has negatived this contention and dismissed the suit. The plaintiff has appealed to this Court and reiterated the chief points urged on her behalf in the Court below. From the arguments addressed to us two substantial questions emerge for consideration, namely, first, what was the status of the Watsons as tenants under the Government; and, secondly, was the tenancy transferable?
3. As regards the question of the status of the Watsons as tenants under the Government, the Subordinate Judge has given weighty reasons in support of his conclusion that they were tenure-holders The statutory presumption formulated in Sub-section (5) of Section 5 of the Bengal Tenancy Act, namely, that where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder, until the contrary has been shown, favours this view. The area of the tenancy in the present care exceeds fourteen hundred bighas; we consequently start with the rebuttable presumption that the tenancy of the Watsons was a tenure; Bibhudendra v. Debendra Nath 27 Ind. Cas. 432 : 20 C.L.J. 140. Debendra Nath Das v. Bibudhendra Mansingh Bhramarbar Roy 45 Ind. Cas. 411 : 27 C.L.J. 543 : 5 P.L.W. 1 : 22 C.W.N. 674 : 16 A.L.J. 522 : 23 M.L.T. 384 : (1918) M.W.N. 379 : 20 Bom. L.R. 743 : 35 M.L.J. 214 : 45 I.A. 67 : 45 C. 805 (P.C.). This presumption has not be rebutted. On the other hard, we have two facts of fundamental importance, which confirm the presumption. In the first place, from the very inception of the tenancy the lands have been cultivated by tenants under the Watsons and their successors-in-interest; such reference to he mode of user of the land is legitimate when the terms of the original grant are ambiguous or cannot be proved by direct evidence: Bamapada v. The Midnapur Zemindary Co. 8), Secretary of State v. Digambar Nunda (9). In the second place, the Watsons, as also their transferee Macdonell were Recorded by the Revenue Authorities as tenure-holders. Indeed, when Macdonell objected on the 8th August 1905 to be recorded as a tenure-holder, he was peremptorily informed that if he insisted upon the status of an occupancy raiyat, he must forthwith vacate the land. The result was that Macdonell withdrew his objection and was recorded as a tenure-holder. We are of opinion that there can be no reasonable doubt that the Watsons were tenure-holders under the Government.
4. As regards the question whether the Watsons had a transferable tenancy the Subordinate Judge has answered in favour of the defendant Company. We have already stated that the Watsons held possession as tenants under the Government for Several years before the plaintiff obtained a five-year malikana settlement in, 1901. There is no room for controversy that the title acquired by the plaintiff was subject to such interest as the Watsons then possessed. During the subsistence of her settlement, the Watsons, on the 23rd December 1902, transferred their interest to Macdonell. On the 20th August 1904, the Revenue Authorities commenced the usual proceedings with a view to re-settlement. We find it recorded on the 1st July 1905, in the order-sheet of the Settlement Officer that Macdonell had his name registered in place of the Watsons, and this was approved by the Collector on the 26th July 1905 Macdonell, as already indicated, made an infructuous attempt to be treated, not as a tenure-holder but as an occupancy raiyat. He ultimately signed the rent-roll as 0 tenure-holder op the 6th December 1906. The order-sheet makes it abundantly clear that the plaintiff herself was a party to the re-settlement proceedings, as she' was an applicant for renewal of the superior interest. On the 21st December, 1906, she filed' a petition and accepted the settlement which was confirmed by the Collector on the 6th February 1907. The settlement with her was thus renewed for a term of five years with effect from the 1st April, 1905, when the previous settlement had expired. Two points are thus beyond dispute on the face of these proceedings, namely, first, that the tenancy of the Watsons was treated by the Government as transferable and the rights of Macdonell as transferee were recognised by the Settlement Authorities; secondly, that the plaintiff, on re-settlement with her, took the property subject to the interest of Macdonell as the holder of a transferable tenure. We are fortified in this conclusion by the fact that the standard form of kabuliyat executed by temporary settlement holders in Government Khas Mahals shows that they expressly undertake to 'respect the rights recorded in the settlement papers as possessed by tenants of all grades' (Survey and Settlement Manual, 1917, p. 198). The balance of modern authorities is in favour of the view that such engagement between the Government and the 'settlement-holder may be invoked by the tenant for his own benefit and protection, even though he nay rot be himself a party thereto; see Chandramani Mohanti v. Manmatha Nath Mitter 5 Ind. Cas. 301 : 11 C.L.J. 68, Jahandar Baksh Mullick v. Ram Lal Basra 5 Ind. Cas. 565 : 37 C. 449 : 11 C.L.J. 364 : 14 C.W.N. 4, Manmath Nath Roy v. Ameer Khan 46 Ind. Cas. 98 : 3 P.L.J. 394. The reference to a Full Bench in Manmath Nath Mitter v. Rai Kishore Mahanti 17 C.L.J. 70n, enumerates the earlier authorities which proceeded on the narrow view that a stranger to a contract can in no circumstances claim, a benefit there under this position can no longer be maintained as a universal rule in the face of the decision in Khwaja Muhammad Khan v. Nawab Husaini Begum 7 Ind. Cas. 237 : 37 I.A. 152 : 32 A. 410 12 C.L.J. 205 : 14 C.W.N. 365 : 7 A.L.J. 871 : (1910) M.W.N. 3135 8 M.L.T. 147 : 12 Bom. L.R. 638 : 20 M.L.J. 614 (P.C.) which was explained in Deb Narain Dutt v. Ram Sadhan Mandal 20 Ind Cas. 630 : 41 C. 137 : 18 C.L.J. 603 : 17 C.W.N. 1143, and Har Shyam v. Shyam Lal 31 Ind. Cas. 22 : 20 C.W.N. 601 : 43 C. 60 : 22 C.L.J. 227. We hold accordingly that the tenure of the Watsons, which was treated as transferable when Macdonell was recorded as a tenure-holder by the Revenue Authorities before the renewal of the malikana settlement with the plaintiff, must be treated as a transferable tenure also in the hands of Macdonell, who was thus competent to create a valid title in the Midnapur Zemindari Co. This conclusion receives support from the significant fact that the plaintiff received rent successively from the Watsons, from Macdonell and from the defendant, her officers granting them receipts in their respective names.
5. The inference follows that the plaintiff is not entitled to eject the defendant Company as trespassers and her suit has been rightly dismissed. The appeal consequently fails and must be dismissed with costs.
6. No costs will, however, be allowed to the respondents in respect of the paper-book beyond the first twenty-four pages.