JOGESH CHANDRA ROY Vs. TAZAR ALI

JUDGEMENT

(1.) Upon the arguments addressed to us on behalf of the appellants in this appeal the three questions which arise for our consideration are: 1st, what was the status of Homar Ali, that is to say whether he was a tenure-holder or an occupancy ryot? 2nd, whether the compromise entered into by the Defendants Nos. 1 and 2 with the plaintiff, after the institution of the suit, amounted to a surrender of the holding, which, taken wish the previous sale in favour of the Defendants Nos. 7 to 13 (or rather in favour of some of them and the predecessors of the rest) by Homar Ali the predecessor of the Defendants Nos. 1 and 2, operated to constitute abandonment conferring on the plaintiff the right of re-entry, and if so whether that relief should be given to him in this suit; and 3rd, whether the decree of the Court of first instance declaring that the Defendants Nos. 8 to 10 are not liable to ejectment from 1/8 share of the disputed lands should stand in view of the fact that the plaintiff had already obtained an ex- parte decree for ejectment against defendants No. 9 to 13 and application to have the same set aside had already been refused.

(2.) With regard to the first of these questions appellant's contention is that Homar Ali was a tenure-holder for a fixed term. In support of this contention it is urged that the kabuliyat, Ex. 8, having been on a printed form ordinarily used for drawing up kabuliyat for Government or khas mahal lands in respect of occupancy ryots not much weight should be attached to the terms and expressions used therein, that the intention of the document was to make Homar Ali a tenure-holder, only the agency by which he was to get the work of cultivation done was not specified and was left undetermined; that the lessee was to cut jungle, erect embankments at his own expense, and make the land fit for cultivation, the obvious intention being that all this was to be done through the agency of others; that the said conditions together with the stipulation that no rent was to be paid for the first three years suggested that it was an ordinary reclamation lease such as is usually given to tenure-holders and that the presumption arising from the area of the lands demised also supports this contention. The respondent on the other hand, relies upon the terms and expression used in the kabuliyat and the clauses forbidding the dig ins of tanks are entitling the lessee to enjoy and take the fruits and ha also relise upon the finally published record-of-rights in which the lessee's rights were entered as those of a settled ryot. It is also urged on behalf of the respondent that the stipulation in favour of devolution of rights by inheritance and the restriction in regard to alienation roads the tenancy a heritable but non-transferable occupancy holding; and that in any event the question was concluded by the concurrent findings of the two Courts below to the effect that it was an occupancy holding and not a tenure.

(3.) Now, as to whether we should treat the finding of the Courts below on the question of status of the tenant as a finding of fact, I may say at the very outset that I do not assent to the view put forward on behalf of the respondent. In my opinion it is a matter of inference as to whether certain legal conditions had been made out or not. In the case of Sulatu Pass v. Jadu Nath Das [1904] 8 C.W.N. 774 (F.B.) it was held that a question as to the nature of the tenancy is a question of law. The case of Ramanuia Mahanta V/s. Midnapore Zemindary Co. [1912] 16 C.W.N 725 on which reliance-has been placed on behalf of the respondent in support of this contention, only lays down that because that is so it does not follow therefrom that all questions of fact arising for the determination of the status are necessarily to be dealt with in second appeal. In my opinion we are perfectly entitled to draw our conclusions and inferences as to legal incidents of the tenancy in order to judge of the character of the tenancy and the status of the tenant.