1. The plaintiffs in the suit out of which this appeal arises are the grandsons of one Imamdi. It is common ground, proved by the patta produced on behalf of the plaintiffs (Exhibit 7) and the kabuliat filed for the defence (Exhibit A), that Imamdi had a tenancy with a rent of Rs. 58 under the landlords whose successors are the principal defendants in the case. Imamdi had two sons, named Yar Mahomed and Gulal, the plaintiffs being the sons of the latter and the pro forma defendants the sons of the former. The landlords, on the strength of the kabuliat above referred to, which was executed by Yar Mahomad alone in 1867, sued to eject the heirs of Yar Mohamad on the ground that their tenancy had come to an end. The decree does not show whether this was because its term had expired or because Yar Mohamad being dead, the tenancy was not heritable. We may, however, take this opportunity of observing that the kabuliat of 1867 was for a term of nine years and that Yar Mohamad and his heirs appear to have occupied the position of tenants holding over on the terms of that document with the exception that the rent payable was subsequently increased by an arrangement to which we shall refer. It has never been contended that the kabuliat operated of itself to create any permanent right in Yar Mohamad or any body else. The plaintiffs asked to be made parties to the ejectment suit on the ground that half the tenancy was theirs. But their prayer was refused; and as Yar Mohamad's heirs did not contest the suit, it was decreed ex parte. The plaintiffs have now brought this suit for a declaration of their right to half the tenancy and for an injunction to restrain the defendants from executing the ejectment decree. The suit has been decreed by the Subordinate Judge of Rangpur and the landlords appeal.
2. We may remark at the outset that the learned Pleader for the respondents tells us that his clients do not ask that the landlords should be restrained from executing the whole decree but only so far as it affects their share.
3. The learned Subordinate Judge finds that Imamdi was a raiyat with a right of occupancy and that, therefore, the plaintiffs, who are the heirs of one of his heirs, are entitled to a share in his holding and cannot be ejected. He holds, further, though the grounds given for the finding seem quite inconsistent with it, that the kabuliat of Yar Mohamad was a collusive transaction. Both these findings are attacked in appeal.
4. It will be convenient to take the second point first as it can be disposed of without difficulty. The Subordinate Judge admits that the evidence of the witnesses, who testify to the so-called fraudulent conduct of Yar Mohamad, is 'extremely unsatisfactory and contradictory.' He finds that the fact of the execution of the kabuliat was known to the plaintiffs as appears from their conduct.' It is quite clear that Gulal was aware of the kabuliat and that that document has been recognized ever since its execution as the document from which such rights as Gulal or the plaintiffs possessed or have exercised, were, derived. As between the two branches of the family, Gulal's branch, have held their share of the tenancy at the rate specified in the kabualiat, and have all along allowed Yar Mohamad in whose name the kabuliat was executed and his heirs to make all the rent receipts. It is a curious circumstance in this case that in 1881-82, a new Settlement was made and the rent raised to Rs. 337-8. Both sides have entirely ignored this matter. The landlords in their ejectment suit referred only to the Settlement of 1867, while the plaintiffs have not attempted to show that that Settlement has been superseded. The existence of this Settlement is shown merely by casual references in receipts. It may be that it was not so much a fresh Settlement as a mere subsidiary covenant to pay a little increased rent for some new land gained from the river, and was not regarded as superseding the regular Settlement of 1867. Be that as it may, it is clear that before 1897, the rent had been raised to Rs. 337 8, and in that year, the plaintiffs mortgaged their share of the tenancy to a company. The rent is given as Rs. 337-8 and the area as Gaons 8-7-10, precisely as in the kabuliat of 1867. There is not a trace of Evidence to show that when the rent was raised by this kabuliat from Rs. 53 to Rs. 300, the father of the plaintiffs made any objection. He must have known that some agreement had been arrived at to justify such an increase. We feel no doubt that the plaintiffs and their predecessor have all along known and assented to this kabuliat, and cannot agree with the Subordinate Judge that it was collusive.
5. On the question whether plaintiffs are raiyats, we are equally unable to agree with the Subordinate Judge. The test in this matter is the purpose for which the tenancy was created. If Imamdi took the land to cultivate himself, he was a raiyat. If he took it to cultivate it by tenants, he was a tenure-holder. The Subordinate Judge rejects the oral evidence. It has been read to us and we cannot say that it is of any real value on either side, and certainly cannot hold that the plaintiffs' oral evidence preponderates over that of the defence. The Subordinate Judge relies on a patta produced by the plaintiffs, from which it appears to him that the land was settled with Imamdi for cultivation. He relies also on the suit against Yar Mohamad which preceded the kabuliat of 1867, which suit, in his opinion, could, under Act X of 1859, which was then in force, have been brought only against a raiyat. He relies also on certain statements in the quinquennial papers and in the Thak map.
6. It will be convenient to take these points in order. As to the patta; it may be said, in the first place, that it is no evidence against the defence. It purports to be signed by one Kali Nath Das and as it is over 30 years old, it may be assumed that it was so signed. But there is no evidence worth the name to connect Kali Nath Das with the defendants. In the second place, the patta does not show that the land was settled with Imamdi for cultivation and we are at a loss to understand why the learned Subordinate Judge thought that it did. Towards the end of the document, it refers to the tenancy which, it attested as an ijara which certainly is a very unusual term to apply to a cultivating lease.
7. As to the suit, all that we know about it is derived from the following passage in the kabuliat of 1867: 'As the term of the patta of the said deceased Mandal has expired and as I have no right of possession thereto, you called me to take fresh settlement. But as I did not come forward to take fresh settlement, you brought a suit against me in No. 187 of 1866-67 in the Collectorate under Act X of 1859, claiming to get a kabuliat from me for a term of two years.' There is certainly nothing in Act X of 1859 to bar the institution of a suit of this description against a tenure-holder, and the description itself obviously suggests that the suit was not a suit for enhancement against an occupancy raiyat, such, as is referred to in Section 17. In this connection, reference may be made to Clause 8 W.R. 188 of Section 23 of Act X of 1859 and to such cases as those of Maharajah Ramnath Singh v. Huro Lai Pandey 8 W.R. 188 and Kalam Sheikh v. Panchu Mandal 2 B.L.R.A.C. 25.
8. The quinquennial papers throw no light on the matter. They show that in 1816, there were 11 bishes odd of cultivated land in the village, the rent of which amounted to Rs. 50 less a deduction of 12 per cent, as collection charges. This clearly does not throw much light on the question, whether the tenancy of 6 gaons odd, which Imamdi is said to have held at a rent of Rs. 58 sometime before 1839, was granted for personal cultivation or for cultivation by tenants. Clearly, the state of affairs in 1816 was very different from that in 1839 and there is nothing to show what was the character of the tenancies existing on the land in either year. The thak papers carry us no farther. They show that in December 1856, there were 15 cultivators and no 'non-cultivators' on the land while the survey map the next year shows 17 agricultural inhabitants and 8 non-agricultural. It is usual for petty tenure-holders to retain a certain amount of land in their own cultivation, and the fact that Imamdi, who was, no doubt, a man of the cultivating class, may have been described as a cultivator does not in the least justify the inference that he took the land to cultivate the bulk of it personally and not to settle tenants on it.
9. The evidence, therefore, that Imamdi was a raiyat seems to us quite inconclusive. On the other hand, there is the presumption referred to in Section 5 of the Bengal Tenancy Act that if a man holds more than 100 bighas, he must be supposed, prima facie, to be a tenure-holder.
10. This provision of the Act is not applicable to the rights of occupancy acquired by a raiyat before the Act came into operation (section 19). But when the question was whether a tenant was or was not a raiyat, reported cases decided under the old law show that the area of the land held was taken into consideration along with other circumstances: Baboo Dhunput Singh v. Baboo Gooman Singh W.R. Gap, No., 1864 Act X Rulings 61 and Gopee Mohun Roy v. Sib Chunder Sen 1 W.R. 68. The provision, therefore, merely incorporates in the law a general principle so reasonable and probable that it would naturally be drawn by a sensible man; and it is therefore, safe to apply the principle even in cases where the actual section itself may not be strictly applicable, though of course in such cases it might not be necessary to adhere to the exact standard of 100 bighas. The land settled with Imamdi according to the plaintiff was about 2,000 bighas. What man in Eastern Bengal would take an area of that size for the purpose of cultivating it by his own servants? The suggestion is opposed to all experience. There is no doubt that for all the time of which we have any trustworthy record, the bulk of the land has been held by tenants under Imamdi's successors and we have no doubt that it was in order to settle these or other tenants that the land was taken. We differ, therefore, from the learned Subordinate Judge and hold that Imamdi and his successors were and are tenure-holders. Taking this view, much of the learned Subordinate Judge's reasoning falls to the ground. If Imamdi were an occupancy-raiyat, his holding would be heritable and the plaintiff's rights could not be denied. Moreover, the conduct of Yar Mohamad and his heirs in not resisting the ejectment suits would be open to the suspicion of collusion. But if Imamdi and his successors were, as they appear to have been, merely tenure-holders for a period, then these considerations lose all their force.
11. It remains, therefore, to be ascertained whether the plaintiffs themselves were tenure-holders under the appellants. Now, as between the plaintiffs and Yar Mohammad, there can be little doubt of the plaintiffs' interest; so strong is the tendency to regard all property, however transient, as heritable that it is not likely that Gulal on Imamdi's death would willingly have acquiesced in his total exclusion from the tenancy that had been Imamdi's. It is proved beyond doubt that for many years not only the plaintiffs but also their cousins have been dealing with the property as if half belonged to the one and half to the other side of the family. We have little or no doubt that as between Yar Mohamad and Gulal, the lease of 1867 was taken with the intention that half should belong to the one and half to the other. The question, therefore, whether the latter became a tenant of the landlord depends on what was the intention of the parties to the kabuliat of 1867. If the landlord knew that he was letting the land to both, but took the kabuliat in the name of one alone merely for the sake of convenience, then clearly the relation of landlord and tenant was constituted between him and Gulal. But if the landlord knew nothing of the arrangements that Yar Mohamad and Galal had made between themselves, and believed himself to be constructing with Yar Mohamad only, then these arrangements could not bind him in any way and would not create any relation between him and Gulal. To decide what was the intention and knowledge of the parties, we must look to their conduct, It is in favour of the plaintiffs that the landlords must have been conscious of that tendency, to which we have alluded, of regarding all property as heritable, which would lead them and all those who were acquainted with Imamdi to expect that all his children should share in what had been his lease. On the other hand, the lease itself tells slightly against the plaintiffs, and it must be borne in mind that from the point of view of the landlords', Imamdi's interest had come entirely to an end. But what tells most strongly against the plaintiffs, in our opinion, is that they produce no rent receipts. Every one knows the value that tenants attach to rent receipts. They do not regard them merely as acknowledgments of money but as documents of title to the property they care most about, showing on what terms they hold it. The kubuliat under which this land is held was given 40 years ago and it seems an extraordinary thing to us that if really the landlords originally or subsequently intended to lease the land to the plaintiffs, they should not be able to produce a single receipt for all that time. Of course, it may be admitted that the receipt would be in the name of Yar Mohamad, but we should expect that if Yar Mohamad's name had been taken merely for convenience, numerous receipts would in the course of these years show the names of Gulal and his sons as marfatdars and would at any rate come from their custody. The fact that not a single receipt has been produced by them seems to us to be very significant and to indicate that the landlords have never entered into any contractual relation with Gulal or his heirs. In this connection, we may refer briefly to Woopendro Mohun Tagore v. Than la Dossia 12 W.R. 263 to the remarks of Garth, C.J., in Jeo Lal Singh v. Gunga Pershad 10 C. 996 or page 1002 and to the more recent cases of Modhusudun Nath v. Hiru Ram 25 C. 396 : 2 C.W.N. 94 and Nitayi Behari v. Hari Govinda 26 C. 677.
12. Great stress has been laid on Exhibit B, a letter sent by the landlords' agent to the first plaintiff in 1896. It is very confused and ungrammatical and it is impossible to translate it exactly into good English. It runs somewhat as follows: By way of giving Rs. 100 of the rent of Yar Mohamad you have sent the said rent. * * * It is wrong not to have sent the rest. * * * By sending the remainder, you will receive a dakhila on returning this letter.' The document, however, does not seem to us to be as important as the Subordinate Judge holds. It is likely enough that the landlords at some time, or other came to know that Yar Mohamad had allowed Gulal an interest in the tenancy. But that knowledge would not amount to a novation of their contract. The document states as distinctly as it states anything that the rent was Yar Muhamad's rent. If such rent was sent by the first plaintiff, it is likely enough that the landlord's agent should acknowledge receiving the money and complain that no more had been sent. The words 'You shall take a dakhila' are doubtless in favour of the plaintiff to some extent but this casual expression in a letter is not a sufficient foundation for holding that the landlord recognized the plaintiff's tenancy. And the plaintiff admits in cross-examination that when he showed this to the landlord himself, the latter at once said it was a mistake.
12. We need not refer to the other documents, which are said to indicate a recognition of the plaintiff's tenancy, as it is quite clear that they relate to an entirely different tenancy.
13. It is quite clear in spite of this letter that the landlords never assented to any division of the tenure between Yar Mohamad and Gulal, that in all proceedings in the Courts, the landlords treated Yar Mohamad as their tenant, and that before the suit for ejectment, the plaintiffs' branch of the family never claimed the right to be made a party. In our opinion, there is nothing in Exhibit B which detracts from the effect of the authorities to which we have referred, or justifies us in drawing a distinction between them and the present case.
14. We, therefore, think that the plaintiffs have failed to prove that the landlords ever entered into the relation of landlord and tenant with them and must accordingly decree the appeal and direct that the suit be dismissed with the costs of both Courts.