KARUNA CHANDRA DAS Vs. SECRETARY OF STATE

JUDGEMENT

(1.) These two appeals have been preferred by the plaintiffs and arise out of two suits filed on their behalf under Section 104(h) of the Bengal Tenancy Act to correct an entry in the Record of Rights wherein the plaintiffs have been recorded as tenure-holders. The plaintiffs-claim their status to be that of raiyats. The plaintiffs ask for the further relief that it be declared that the entry with regard to rent was wrong. In Appeal No. 1765 the lands are covered by two leases, Exs. 1 and 2 and the area in each lease is much in excess of 100 bighas. In appeal No. 2018 of 1924 the area is also over 100 bighas. In each of these appeals the plaintiffs have consequently to rebut the statutory presumption arising under Section 5 of the Bengal Tenancy Act. They have also to rebut a further presumption arising out of the entry in the Record of Rights. That presumption is sought to be rebutted by the description of the plaintiffs in the kabuliyat in the first case as a raiyat and by the use of the word "cultivator" therein. As the first two kabuliyats concern land which form the subject-matter of Appeal No. 1765 and are printed in official forms, the lower Courts were right in holding that the kabuliyats do not rebut the presumption under Section 5 of the Act and in holding that the real and the true test in this case is to see for what purpose the tenancy was created, and where the lease is equivocal the attendant circumstances have to be looked to judge of the purpose for which the tenancy was created. Here we find that Palwan who was the original tenant was a bhadralogne Mussalman carrying on business elsewhere. The question whether he is a raiyat or a tenure- holder ultimately depends on a question of fact.

(2.) The Judicial Committee have in two recent cases, namely, in Debendra Nath Das v. Bibudhendra Mansingh [1918] 45 Cal. 805 and in Rajani Kanta Ghose V/s. Secretary of State for India [1919] 46 Cal. 90, pointed out that the question whether the tenants are raiyats ultimately depends on the question of fact and we must look to the attendant circumstances. The whole evidence which was placed before the first Court leads to the conclusion which has been arrived at by both the Courts below that Palwan employed the agency of tenants to cultivate the disputed land. He was in fact a middleman and was a very useful one. He reclaimed the char in order to make money by letting out the lands to cultivators. Nor can very great stress be laid on the words in the kabuliyat of 1882 of raiyat and cultivator as pointed out by the Judicial Committee in Gokul Mandar V/s. Pudmanund Singh [1902] 29 Cal. 707: Their Lordships did not attach any importance to the mere form of the kabuliyat or the use in it of the word "cultivator."

(3.) It has been suggested in this case that there are soma rant receipts which show that the status of the tenant is that of raiyat. With regard to these receipts the following remarks of the Judicial Committee in the case just referred to apply Gokul Mandar V/s. Pudmanund Singh [1902] 29 Cal. 707: Nor does the receipt of rent in which the appellant is described as a raiyat carry the matter any further.