This is an appeal from a decree of the High Court of Judicature at Patna dated 18th November 1929 which reversed a decree of the Subordinate Judge at Darbhanga dated 26th January 1927 and decreed the plaintiffs' suit with costs. The present suit was instituted by the respondents on 30th April 1925, against the appellants for ejection of the latter from an area of land in village Samartha amounting to about 101 bighas, on the ground that the respondents had acquired a right of occupancy in the lands in suit under the Bengal Tenancy Act (Act 8 of 1885), and the question in issue in the present appeal is whether they had such a right at the date of the suit. It was conceded by the respondents before this Board that their claim to a right of occupancy depended on a lease of the lands in dispute (subject to a small exception referred to later) which was granted to them by the appellants in 1914, the terms of which are contained in a kabuliyat executed by respondent 1 who is the head of the Hindu family of which the respondents are the members, and dated 14th August 1914. The lease was for a period of nine years extending from 1322 to 1330 Fasli, that is, from 5th September 1914 to 24th September 1923. While the parties are in dispute whether the respondents were forcibly ejected or voluntarily ceded possession, there is no doubt that the respondents were out of possession at the date of suit. The respondents' claim is based on S. 21 (l), Tenancy Act, which is as follows :
" 21.-(l) Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all land for the time being hold by him as a raiyat in that village."
It is admitted that when they obtained the lease of 1914 the respondents were settled raiyats of the village within the meaning of the Act. The appellants maintained that the respondents had acquired no right of occupancy on two alternative grounds, viz : (a) that no right of occupancy could attach to the lands in suit as they were the appellants' private lands within the meaning of S. 116, Tenancy Act; and (b) that, in any event, the lands in suit were not held by the respondents under the lease of 1914 as raiyats, as they were not held for the purpose specified in S. 5 (2) under the definition of raiyat, namely, for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners." The learned Subordinate Judge held that the terms of the kabuliyat showed that the lands were let to the respondents for the purpose of cultivation according to S. 5, but that the kabuliyat contained an admission by the respondents that the lands were the private lands of the appellants, which was sufficient evidence to establish the fact, and he dismissed the suit. On appeal, the High Court agreed that the lands were let for the purpose of cultivation, but they differed from the learned Judge's conclusion as to private lands, and they allowed the appeal. As regards the appellants' second contention, their Lordships agree with the decision of both the Courts below that, assuming that the lands were not the private lands of the appellants, the terms of the kabuliyat of 1914 show that they were let for the purpose of cultivation as defined in S. 5 (2). The appellants founded on the clause which provides :
" I and my heirs and representatives neither have nor shall have any sort of interest in the said land save and except to get the produce to cultivate the land and to pay the rent. I shall not change the features and status of the land, nor shall I take recourse to any illegal act or interfere in any matter with regard to the land, which may go against the wishes of the said Babu or against the provision of law."
The extent of the operation of this clause is not very clear, but their Lordships are of opinion that, in so far as it might be said to restrict the right to cultivate, including the right to bring under cultivation, otherwise clearly conferred, this clause would constitute an attempt to contract out of the Tenancy Act and would be ineffective. The holding must be considered as a complete unit, and there is no good reason for separating the paddy lands from the khurhur lands both of which, on the facts of this case, must be taken as being under cultivation within the meaning of the Act.
On the question of private lands, it is the duty of the Court, as provided in S. 120, Tenancy Act, to presume that land is not a proprietor's private land until the contrary is shown. Further the lands in suit are entered in the survey khatian completed in 1899, as "proprietor's bakasht," and their Lordships agree with the High Court that the “Guide and Glossary to the Survey and Settlement Operations in this District," which were published in 1907, and the "Final Report of the Survey and Settlement," published in 1926, make clear that the entry in the Record of Rights negatives the appellants' contention, and is entitled to the statutory presumption of its correctness. The report also states the terms 'ziraat" is locally applied to all land in the possession of the proprietor, irrespective or whether it is truly ziraat, or private land," within the meaning of the statute. For this reason, their Lordships agree with the High Court that the admission in the kabuliyat of 1914 that the lands were "khudkasht" that cannot be accepted as a clear admission they were not only in the possession of the appellants but were also ziraat, or private land. For the above reasons, also, the judgment of this Board in 1926 PC 60 (1), which proceeded on the evidence and admissions in that case, is not applicable to the present case.
The appellants also founded on the batwara khesra of mauza Samartha of 1853, but the most that they can get from it is that the lands in suit were then in the proprietor's possession while the fact that other lands are therein described as ziraat, while these lands are not so described, is unfavourable to the appellants' contention. As regards the whole documentary evidence in the case, their Lordships agree with the High Court that the most that it shows in support of the appellants' contention is that from time to time they were in direct possession of the lands in suit. They also agree with the High Court that the oral evidence fails to establish that these lands were ziraat, or private land. The evidence as to how possession passed to the appellants prior to suit is inconclusive. Accordingly their Lordships are of opinion that the appellants have failed to displace the statutory presumptions already referred to.
The plaint includes among the lands in survey plot No. 2139, and this is included in the decree of the High Court, but this plot is not included among the lands described in the kabuliyat of 1914. The appellants' counsel drew their Lordships' attention to this, and respondents' counsel was unable to support its inclusion in the decree, which should therefore be varied so as to exclude this plot.
Their Lordships will therefore humbly advise His Majesty that the appeal should be dismissed with costs, and the decree of the High Court of 18th November 1929, should be affirmed, subject to the exclusion of plot No. 2139, as above mentioned.