UPENDRA NATH GHOSE Vs. BHAIRAB CHANDRA SARKAR

JUDGEMENT

(1.) The questions which arise in this second appeal are firstly, whether under the terms of a kabuliat executed by the defendant No. 1, Bhairab Chandra Sarcar, on the 7th April 1892, he is a non-occupancy riayat or an ijaradar. A second question was raised by the appellant that even if he were a non-occupancy raiyat, he could not be regarded as a person holding over, as he was never recognised as a tenant by the plaintiff. The plaintiff was the purchaser of the rights of one Kunja Behari Chowduri with whom the Government settled the mahals in which the disputed land is situated in the year 1896. His interest was sold for arrears of revenue, or, as it really was khas mahal rent, and was purchased by Joy Narain Chowduri in 1906, who in his turn sold his interest to the plaintiff in April 1908.

(2.) We will deal with the second point first, because it appears to us perfectly clear that if the defendant No. 1 was a cultivating tenant on the land under a nine years lease, he must be a non-occupancy raiyat and nothing else and he, therefore, could not be ejected without notice and this is what the Subordinate Judge in the Court below has found. But the main contention of the appellant is that on a true construction of this lease, the defendant No. 1 was an ijaradar and not a raiyat at all; and although this is contrary to the view taken by both the lower Courts, we think that it is a sound contention and must be given effect to, and in the result, as we shall see, it is far more to the advantage of the defendant respondent that we should take this view.

(3.) The lease purports to be on the face of it a malguzari Settlement It purports to give the lessee rights superior to those of jotedars, raiyats, korfar raiyats and even village headmen. It obstensibly was given for the purpose of collecting rents from tenants on the land. It imposed an obligation upon the defendant to furnish village papers to the Collector and it debars the defendant from selling or mortgaging or sub letting in patni the lands devised. Then again the land is described as an estate throughout and it seems to bear a separate number as an estate, and the parcels of land on the boundaries are all described as estates Nos. so and so. In opposition to this, the learned Vakil for the respondent points out what the lower Courts greatly relied upon, that the facts that there were no raiyats or korfar raiyats upon the land at the time goes to show that the terms of the lease are inconsistent with the facts and it could not have been the intention of the parties to give an ijara lease, and that it must be held, as was held in the case of Gokul Mandar v. Pudmanand Singh 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.) that this was one of these instances of what their Lordships of the Judicial Committee described as the usual mistake of using a printed form for purposes to which it was not adopted. It is further contended that the expression "I shall collect rent from jotedars, tenants, raiyats and korfar raiyats as the case may be," shows that this is an alternative form which may be used for various purposes and that no body but a raiyat can collect rent from a korfar raiyat. On the other hand, it might equally well be argued that no body but an ijaradar can collect rent from a jotedar, tenant or raiyat; and the fact that there were no raiyats on the land at the time of the devise is fully explained by the fact that this large tract of upwards of 60 bighas was at the time waste land and jungle and that it was intended apparently by the parties that it should be cleared by means of the ijaradar and his tenants. It cannot be said that because a man does not as a fact have any tenant under him that he must be a raiyat whatever the nature of his holding and we do not think that the observations of Mr. Justice Field in the two cases of Durga Prosunno Ghose v. Kalidas Dutt 9 C.L.R. 449 and that of Laidley v. Gour Gobind Sarkar 11 C. 501 could have been intended to go to this extent; nor is it contended by the learned Vakil for the respondent that he could have intended to lay down any such very general proposition; and at page 505 of the last mentioned case, he clearly distinguishes the case of Rai Komul Dossee v. Laidley 4 C. 957 which was a case of a lease purporting on the face of it to be an ijara lease, whereas the lease to which he applied his dicta in the case we have cited purported upon the face of it to be a jotedari lease, and he had only anticipated the rule laid down by the Privy Council in Gokul Mandar s case 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.), when he says that the facts existing at the inception of the tenancy are to be taken into consideration when it is necessary to decide whether the lease has been originally granted for the purpose of cultivation, and if it has been so granted, it is nonetheless a raiyati lease, though the lessee may happen subsequently to sub-let and it seems to us that it is nonetheless an ijara lease if the ijaradar does not happen subsequently to sublet, for every landlord is entitled to cultivate any land which he holds, on which there are no tenants, as his nij jote. Now what their Lordships of the Privy Council say in Gokulmandar s case 29 C 707; 4 Bom. L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.) does not appear to us to apply to the facts of this case. The kabuliat executed by the appellant in that case was on a printed form in which it was described as form of kabuliat for those cultivators who have not been recognised as having occupancy right", but, on the other hand, the holding was described in a note as "taluk" and it was a tract of land measuring 1,174 bighas. Upon this, a presumption arose under the Bengal Tenancy Act that it was a tenure and not an occupancy-holding, and their Lordships agreed with the decision of the High Court that great importance was not to be attached to the mere form of the kabuliat in that case or to the use in it either of the word "cultivator" or of the word "taluk", that is to say, there were two expressions in that lease which were wholly inconsistent with each other and cancelled each other out, and it was, therefore, incumbent upon the Court to decide whether the lease was purely for cultivation or one devising a tenure Their Lordships of the Judicial Committee decided upon the facts and upon the presumption arising by Section 5(5) of the Bengal Tenancy Act that it was a tenure and not a raiyati holding. Obviously, therefore the finding in that case does not in any way affect the present case.