MAHOMMED AYEJUDDIN MIA Vs. MAHARAJAH BAHADUR SIR PRODYOT KUMAR TAGORE AND THE SECRETARY OF STATE FOR INDIA IN COUNCIL, MORTGAGE IN VAKALATNAMAH BY MRMACKAY, MANAGER, TAGORE RAJ ESTATE

JUDGEMENT

(1.) In there appeals the defendants appeal from a judgment Additional Sub-ordinate Judge of Mymensingh, dated the 31st July 1917. The subject matter of Appeal No. 67 is 203 bighas of land within Mouza Bamna and 10 bighas 11 cottas of land within Mouza Gilibari, both these Mouzas being in the Biatrial of Mymen--singh in Sub-Division Jamalpore; the subject-matter of Appeal No. 22 is 432 bighas 3 cottas of lend within Mouza Chinaduli in the game District and Sub--Division. Mouza Bamna, Gilibari and Chinaculi are situate in Perganna Batiladaha which is within the Touzi of the Collectrate of Zillah Rungpur the Zemindari right in which tet gonna is vested in Maharajah Sir Prodyct Kumar Tagore subject to a mortgage in favour of the Secretary of State. The kids in dispute were formerly in the possession of one Makhanlal Pandey as a jotedar but after his death they were settled with his grandsons (daughter s sons) Hari Charan and Hari shebak Bajpai. Hari Shebak died in 1888, leaving two sore Chandra Mouli and Chandra Bhusan, Hari Charan died in 1898, his son Chandra Gur predeceased him leaving three sons, Rama Nath, Biswanath and Jadunath Chandra Mouli, Chandra Bhusan, Ramanath, Biswanath and Jadunath remained in possession of the lands in dispute and paid rent in respect thereof down to the year 1914, when they sold the lands in dispute to the appellants. During the occupation of the descendants of Hari Shebak and Hari Charan the lands in dispute were cadastrally surveyed and a Record of Rights, which was finally published on the 27th of February 1913, was prepared under the Bengal Tenancy Act in which the descendants of Hari Shebak and Hari Charan named above were entered as havirg a permanent tenure in respeot of the lands of Appeal No 22 and as having a permanent tenure in respect of 203 bighas of Appeal No. 67 and as raiyat with a right of occupancy in respect of the other lands. As a result, the respondents applied, under Section 106 of the Bengal Tenancy Act, to the Settlement Authorities for rectification of the entries, whilst these proceedings were pending, the sale took place and the Section 106 proceedings wire withdrawn and the suits in respect of which these appeals arise were filed on the 30th July 1905 and the 5th August 1915, claiming a declaration that the entry in the Record of Rights was incorrect and in and void and seeking a decree for vacant possession and ejecting the defendants from the lands, and the learned Subordinate Judge has passed a decree in both suits in terms of the prayer. Perganna Patiladaha was, it is said, formerly in Rungpur, and even now the Rungpur Collectorate has jurisdiction over the erganna, although it is within the civil jurisdiction of Mymensingh, and she main contention of the appellants in these appeals is that the jotes in dispute are khod or khudkast tote having the Acts incidents of tenure as Rungpur khod totes which are said to be heritable and transferable although liable to enhancement of cent such jotes being said to be held on permanently renewable leases for varying terms (to the case of the lands in dispute the terms being nine years and in one case seven years, and in one five years) the rent being liable to et hinoement according to the rate prevailing in the legmna at the expiration of the term. There is no evidence on the record as to the teems upon which Mikhanlal Pandey held the jotes but in respect of the land of Appeal No. 22, there are three documents in existence with regard to the terms of the holding of Hari Charan and Hari Shebak, these are Exhibits 1a, 1b and 1c. Similarly with regard to the lands of Appeal No. 67, there are three documents (Exhibits 10d, 10d and 1g) which relate to the transformation he holding of Hari Charan and ,Hari Shebak in these lands. It will be convenient to examine these at this stage.

(2.) Exhibit la is dated the 2nd Jane 1860, and is executed by Hiri Saebak and Hari Charan in favour of Prosanno Kumar Tagore, it is describes as a cowl bonwoun or money in respect of Girdh Inlampur or Division ifclamporr, Perganna Patiladaha, inoluded in village, Kismut Chinaduli and Hari Shebak and Hari Charan are described as the malgusar-dart of sarasari jote It states that Hari Shebak and Hari Charan were satisfied as to the annual rent of the land which was fixed at Rs. 205--8--0 annually for a period of nine years, and that they took the land on the arrangement stated up to the mead (that is, the term). They agreed thereby to pay the rent daring the term and a similar rent after the term expired until a fresh arrangement was come to according to the measurement it and to the rent prevailing in the Perganna. The document concludes with a statement that in the jote except the riyoti right there was no right of gift, sale or settlement in ijara or of sale by a third party in execution of a decree or of partition without the consent of the Sarhar.

(3.) Exhibit 1(b) is dated the 15th September 1870 and is executed by Hari Shebak and Hari Charan in favour of the executors of Prosanna Tagore. It is described as a dowl bandobust of land and money--rent and relates to the same property, the rent being fixed at Rs. 236-8-0 for a period of nine years. The lessees agree to preserve the trees, and state that the right to be enjoyed is raiyati right and that there is no right of sale, gift and giving in ijara settlement or transfer without the consent of the Sarkar. The document concludes with a provision that after the mead if they did not file a fresh meadi dowl kabuliyat within one year, according to the rent assessed after measurement and according to the rent prevailing in the Perganna, the jote would come inter the khas maiul lahsil of the Harkar,