GANPAT MAHTON Vs. RISHAL SINGH

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for ejectment and arrears of rent. The plaintiffs are landlords, and their case is that the defendants executed a kabuliyat in their favour for a term of seven years, and came into occupation of the disputed lands on the 19th September 1902. The term expired on the 4th June 1909. The kabuliyat states expressly that on the expiry of, the term the tenants would give up the lands, but they did not vacate the lands, and the present action was consequently commenced on the 16th September 1910. The plaintiffs assert that the lands are their zerait and that the defendants have not acquired the status either of occupancy or non-occupancy raiyats under the provisions of the Bengal Tenancy Act. The defendants allege, on the other hand, that they were in occupation from before the execution of the kabuliyat, that the lands are not zerait and that they are in fact occupancy raiyats as recorded in the Settlement proceedings. The Court below has held that the lands are zerait lands and that the plaintiffs are entitled to eject the defendants. On the present appeal it has been argued that there is no evidence to show, at any rate no reliable evidence to prove, that the lands are zerait as alleged by the plaintiffs.

(2.) The evidence has been placed before us and it appears that the only evidence to show that the lands are zerait is the recital in the kabuliyat of the 19th September 1902. It has been argued on behalf of the defendants-appellants that this recital is not admissible in proof of the allegation that the lands are zerait; and in support of this view reliance has been placed upon the cases of Nilmoni Chuckerbutti v. Bykant Nath Bera 17 C. 466; Sher Bahadur Sahu v. Mackenzie 7 C.W.N. 400; Masudan Singh v. Goodar Nath Pandey 1 C.L.J. 456 and Ajodhya Prosad Singh v. Ram Golam Singh 4 Ind. Cas. 529 : 13 C.W.N. 661. On the other hand attention has been invited to the decision in Bhagtu Singh v. Raghu Nath Sahai 1 Ind. Cas. 571 : 13 C.W.N. 135 : 9 C.L.J. 15 where, it is said, a different view was taken. The question raised must be determined primarily on a construction of the statutory provisions on the subject.

(3.) Sub-section (3) of Section 120 of the Bengal Tenancy Act, read with Sub-sections (1) and (2), lays down the tests to determine the question, whether a particular land is the proprietor s private land. According to Clause (a) of Sub-section (1), land which is proved to have been cultivated as zerait by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of the Bengal Tenancy Act is the proprietor s private land. There is no evidence of this description in the case before us. According to Clause (6) of Sub-section (1), cultivated land which is recognised by village usage as the proprietor s zerait is also the proprietor s private land. There is no evidence of this description in the present case. Finally, according to subsection, (2) of Section 120, when a question arises whether any land, other than land of the description mentioned in Clauses (a) and (6) of Sub-section (1), is zerait the presumption is that the land is not zerait, but to determine the question regard shall be had to (a) local custom, (b) to the question whether the land was before the 2nd March 1883 specifically let as the proprietor s private land, and (c) to any other evidence that may be produced. It will be observed that this sub- section refers to evidence of three descriptions: first, local custom; secondly, letting of the land specifically as the proprietor s private land before 2nd March 1883; and thirdly, any other evidence that may be produced. In the case before us, there is no evidence of local usage or of letting before the 2nd March 1883; the only evidence of letting which has been produced is the kabuliyat of the 19th September 1902. The question is, whether regard can be had to this evidence as included in the comprehensive description any other evidence that may be produced." Upon this point there has been some divergence of judicial opinion.