Fletcher, J.
1. These are three appeals by the defendant, the Secretary of State for India in Council.
2. The three suits out of which these appeals arise were brought by the plaintiffs in the Court of the Subordinate Judge of Midnapur under the provisions of Section 104H of the Bengal Tenancy Act. The plaintiffs at a recent Settlement had been entered in the Record of Rights as tenure-holders. Accordingly they brought these suits asking that they were raiyats with a right of occupancy in lands in question. At the trial the learned Subordinate Judge decided in their favour. Hence the present appeals by the appellant. The sole question involved in these appeals is, therefore, what is the status of the plaintiffs. In suits of this nature one has to bear in mind what are the rules laid down by Statute for determining whether the person is a tenure-holder or a raiyat.
3. Section 5, Sub-section 1, of the Bengal Tenancy Act provides that 'tenure-holder' means primarily a person who has acquired from a proprietor or from another tenure-holder right to hold land for the purpose of collecting rents by bringing it under cultivation or by establishing tenants on it.
4. 'Raiyat' as provided by Sub-section 2 of the same section means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners. The Act also contains two special rules of evidence applicable to the present case. First, the rule laid down in Section 5, Sub-section 5, that where the area held by a tenant exceeds 100 standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown. The other rule is contained in Section 103B, Sub-section 3, namely, that every entry contained in a Record of Rights finally published shall be presumed to be correct until it is proved by evidence to be incorrect. It has been urged before us that the rule contained in Section 5, Sub-section 5, does not apply to a tenancy created before the passing of the Act. In support of that argument reliance was placed on the case of Sarat Chandra Roy v. Ratubuddin 17 Ind. Cas. 227 ; 16 C.L.J, 271 at p. 275. I am unable to concur in the view expressed by the learned Judges in that case. There is nothing in Section 19 or in any other section that so limits the application of Section 5, Sub-section 5, and it may be pointed out that the Privy Council applied the presumption to a case where the tenancy was dearly created before the passing of the Act: Gokul Mandar v. Pudmanund Singh 29 C. 707 ; 28 I.A. 196 ; 6 C.W.N. 825 ; 4 Bom. L.R. 793 ; 8 Sar. P.C.J. 323 The above are, therefore, the rules that must be applied to a case like the present.
5. The facts appear to be as follows: The lands in question together with other lands originally formed a portion of a Pargana Naruamutha in Estate Majuamutha.' They had, however, been separated from the estate and were in possession of the Government for the purpose of the salt monopoly. In the year 1864 the salt monopoly was abolished. The lands, however, were not re-united to the parent estate but passed from the Salt Agency into the hands of the Revenue Authorities.
6. The lands were, classed under three heads: (a) Mal Jalpai (b) Sadar Mahal Jalpai and (c) Khirode, which is really a sub-division of (6). On the 13th of May 1872, the Government granted to one Bholanath Nund an ijara of 140 Sadar Mahal Jalpai mouzas forming a portion of the lands mentioned above. The settlement granted to Bholanath Was a temporary one and has long since terminated. On the 19th of Pous 1280 B.S, corresponding with the 2nd of January 1874, Bholanath granted to Nritya Kali Dasi, daughter-in-law of Kamala Kanta Bose. and Kasinath Jana, a prajagiri settlement of 2192 bighas 10 cottas, local bigha=3,050 standard bighas, as stated in the patta, Exhibit 3.
7. Nritya Kali and Kasinath on the 24th of December 1875 made an assignment to Panchanan Barik, a predecessor-in-title of the plaintiffs, of 905 local bighas 5 cottas, being a portion of the land leased by the patta of the 19th of Pous 1280.
8. Subsequent admeasurement shows that the quantity of land stated in the assignment of the 24th of December 1875 to be 905 bighas odd in fact amounts to 2,634 bighas.
9. As the patta of the 19th of Pous 1280 is the origin of the tenancy, one must in the first place examine the terms and provisions thereof in order to see if the document shows without ambiguity what were the conditions of the tenancy. The first point that calls for notice is that one of the lessees was the wife of a person named Bose. The Boses do not, nor would they, wish to be considered as belonging to the class of cultivators. The other lessee belongs to the class of cultivators. Then coming to the terms of the document the words: 'You having applied to me for a prajagiri jote settlement of 2,192 bighas 10 colitis of jungle jalpai lands... I make with, you a prajagiri settlement in respect of 2,192 bighas 10 cottas of the saddr mdhal jalpai jungle lands' first call for notice. The amount of the land as stated in the lease is far in excess of what is usually held by a raiyat. The matter, however, does not end there, for it has been found on an actual admeasurement that the 905 bighas odd assigned to plaintiffs' predecessor actually amount to 2,600 odd bighas. Presumably, therefore, the whole amount let out amounted to between 6,000 to 7,000 bighas. As Was observed by the Judges of this Court in the case of Gohul Mandar v. Pudmanund Singh 29 C. 707 ; 28 I.A. 196 ; 6 C.W.N. 825 ; 4 Bom. L.R. 793 ; 8 Sar. P.C.J. 323, 'Under the Bengal Tenancy Act, the presumption is that any person holding more than 100 bighas of land is to be considered a tenure-holder and not a ryot. Of course this presumption can be rebutted; but the onus lies on the defendant in this case. It is hardly conceivable to any one knowing the revenue settlement business in this country that Government would let but nearly 4,000 bighas of land, if not more, to any person for the purpose of cultivation by himself or by members of his family or by hired servants or by the aid of partners. There exists no machinery in this country for such extensive cultivation.' It was further urged that the use of the word 'prajagiri' indicated that the interest granted by the patta was that of a cultivator. But the word 'praja' only means tenant, except in Cooch Behar and Cuttack where it may mean a cultivator.
10. Further, there being a period before the full rent was payable under the patta suggests that the grant was a tenure. This argument is supported by tie observations made by the Court in the oajie of Bibhudendra Mansingh v. Debendra Nath Das 27 Ind. Cas. 43 20 G.L.J. 140 at p. 147 'There was a period of remission fised during which no rent was to be paid on account of the itself. This is a term which usually finds place in leases of tenures.'
11. Coming back to the pattah the words In the hope of acquiring a junalebari right in future you undertake to bring under cultivation the dense jungle lands full of ferocious, beasts at an enormous expense.' The learned Judge seemed to consider that these words went far to show that the right created by patta of the 19th of Pous 1280 was a raiyoti interest. I am unable to agree with the view of the learned Judge, the view he takes is not supported by any authority. In the case of Drobomoyi Gupta v. Davis 14 C. 323 ; 7 Ind. Pec (N.S.) 214, it was held that a tenancy of 1,600 bighas of jungle infested by wild heasts for the purpose of bringing it under cultivation was a tenure and not a raiyati interest with a right of occupancy.
12. In Section 8 of Regulation VIII of 1793 there is a reference to junglebari talukdars. The learned author of Mittra's Land Law of Bengal remarks at page 53: 'Junglebari leases or leases for reclamation and cultivation of waste lands in the Sunderbans began to be granted from time to time until the year 1845 when a large number of grants Were made, but no definite rules for grants of waste lands were framed until the year 1868.' Again at page 132 the author remarks: 'I purpose to deal with the taluks existing at the time of the Decennial Settlement. They may be classified (1) taluks for which the revenue was paid through temiridats and the title deeds in respect of which contained a stipulation that it should be so paid, (2) taluks held under grants from zemindars which did not expressly transfer the property in the soil but operated Simply as leases on terms of payment of rent and Other conditions, (3) junglebdri taluks held under permanent leases on condition of clearance of jungles of jungle lands and payment of fixed amounts of revenue after a fixed rent-free period and (4) taluks Which might have been recorded as independent but for which applications to the Collector were not made within one year from the passing of Regulation I of 1801.' This quotation from the learned author's work is from the chapter headed 'Permanent tenures.' In the chapters relating to raiyats the word juuglebari' is not mentioned Finally the zords in the patta 'You will continue to hold and enjoy the lands from heirs to heirs by producing valuable crops, settling tenants and having the lands cultivated.' A more accurate translation of the words translated as 'settling tenants' and 'having the lands cultivated' would be 'by bringing the land under cultivation by settling tenants.'
13. These words, it is said, employed with the former words in the lease, 'you shall bring the land under cultivation in nij jote or through tenants' show clearly that the interest granted was a raiyati one. But as pointed out in the case of Bibhudendra Mansingh v, Debendra Nath Das 27 Ind. Cas. 43 20 G.L.J. 140 at p. 147 it was optional on the tenant to 'cultivate the land himself or through tenants and such words cannot negative the statutory presumption.
14. The respondents argued that their status must be determined by the law as it stood at the time the tenancy was created and that prior to the passing of the Bengal Tenancy Act, 1885, a tenure meant a tenancy for the purpose of collecting rent and that the insertion in Section 5(1) of the Act of the words 'or bring it under cultivation by establishing tenants on it' effected a change in the law. In support of this contention the respondents relied on the judgment of this Court in the case of Durga Prosonno Ghose v. Kali Das Dutt 9 C.L.R. 449. But it has been repeatedly held that the observations of Field, J., in that Case as to the test to be applied as to whether a holding was a raiyati holding or a tenure is not exhaustive or the only test [see Midnapttf Zemindary Co. Ltd. v. Sham Lal Mitra 6 Ind. Cas. 362 ; 15 C.W.N. 218, Promoda Nath Roy v. Asir-ud-din 11 Ind. Cas. 262 ; 15 C.W.N. 896 and an unreported judgement of Chitty and Teunon, JJ.,in the case of the Secretary of State v. Jadav Chandrd Misra 39 Ind. Cas. 409 ; 21 C.W.N. 452 printed in the record]. I agree with the view of the learned Judges in the latest of these cases that the definition of a tenure as contained in the Bengal Tenancy Act introduced no change in the law. In any case the Bengal Tenancy Act applies to the tenancy though created before the passing of that Act.
15. I have now dealt with the arguments based on the terms of the patta. So far from the terms thereof negativing the statutory presumption, I think the patta is only consistent with the interest granted thereby being a tenure.
16. In that view of the case the body of evidence that has been given to show the subsequent conduct of the parties is, I think, inadmissible. The rule, as I understand it, is that evidence may be given to explain but not to contradict documents the meaning of which is doubtful and such evidence may consist of proof of the mode in which property has been held and enjoyed thereunder. But where the meaning of the words in the document is unambiguous, the subsequent acts of the parties are not admissible to construe it, whether the document be ancient or modern [North Eastern Railway Co. v. Lord Hastings (1900) A.C. 260 ; 69 L.J. Ch. 516 ; 82 L.T. 429 ; 16 T.L.R. 325 and Clyde Navigation Trustees v. Laird (1883) 8 App. Cas. 658].
17. Assuming, however, that there is any ambiguity as to the meaning, of the patta I am unable to agree with the view taken by the learned Subordinate Judge that the evidence of conduct is sufficient to rebut the statutory presumption.
18. Before proceeding to consider this evidence I would recall the fact that the plaintiffs-respondents are assigns of a portion only of the land comprised in the patta of the 19th of Pous 1280. There is no evidence to show in what manner the other and larger portion of the demised premises has been dealt with. The first piece of evidence under this head that was dealt with by the learned Subordinate Judge is the statement made in the assignment to the predecessor of the plaintiff. The learned Judge was so greatly impressed by this piece of evidence that he stated that any doubt he might have had was completely removed by it. But, after all, these Statements are not evidence against the appellant: he was no party to the document in which these statements were made and it is not shown that they were ever brought to his notice. It must not be taken, however, that I agree with the view of the learned Judge' as to the effect of these statements, if admissible. They have not to my mind the effect that the learned Judge considered they have. Other documentary evidence under this head are the pattas and kabuliyats granted by or executed in favour of the predecessor of the respondents. These documents instead of supporting the respondents' case are, I think, opposed to it. In Exhibits 6 and 43 which are the plaintiffs-responderits' own exhibits, their predecessor-in-title is described as a talukdar and grants leases in perpetuity. There is nothing in those documents to suggest that he had the interest of a raiyat in the land. In the majority of the pattas filed by the appellants (Exhibits E1 to E21) the predecessors of the respondents are described as talukdars and in none of such Exhibits are there any words to suggest that the predecessors had a raiyati interest.
19. A similar remark applies to the amalnamas (Exhibits C to C 7).
20. The rent receipts which have been filed carry the case no further. They are quite consistent with the interest of the respondents being that of tenure-holders.
21. The learned Judge was also much impressed by the effect of the oral evidence. The evidence, however, falls far short of establishing the fact that the respondents are raiyats. The evidence on behalf of the respondents shows that only 150 bighas are in the respondents' own cultivation and that some eight years before the suit they were cultivating about 200 bighas. There is no reliable evidence that they ever cultivated more. The evidence on behalf of the respondents also showed that 1,000 bighas or so were being cultivated by bhagchasis and that there were 150 tenants in the mouzas. Bhagchasis are persons who cultivate land rendering a share of the produce to the landlord. They may or may not have an interest in the land. They are, however, not 'hired servants' as mentioned in Section 5, Sub-section 2, of the Bengal Tenancy Act. The learned Judge was also much impressed by the fact that tne respondents had a chesghur in one of the mouzas where the labourers stayed and their ploughs and cattle were kept. If, however, the respondents are cultivating 150 bighas or so, ploughs and cattle would be required for that purpose and unless the respondents or their families cultivate the land, labourers would also be necessary. In these circumstances the fact that the respondents have erected a shed, but or some similar structure to protect their implements of husbandry and cattle from the weather and to afford their labourers a place to sleep in, seems to me a fact of no evidentiary value at all.
22. The cases decided in this Court show that it is possible for a person to be a tenure-holder, although a part of the land in his occupation is cultivated by himself and was intended to be cultivated by himself [ Bibhudendra Mansingh v. Debendra Nath Das 27 Ind. Cas. 43 20 G.L.J. 140 at p. 147] The conclusion I come to on this oral evidence is that, even if admissible, it in no way rebuts the presumption that the respondents are tenure-holders. Finally the learned Judge held that it was not open to the appellant to contest the fact that the respondents had a raiyati interest owing to certain proceedings under Regulation VII of 1822 held in the year 1877. In the year 1877 settlement proceedings Under Regulation VII of 1822 were held for the purpose of settling the amount of land revenue payable to the Government. The tenants were not bound to pay the enhanced rents appearing in the settlement records, unless they signed the jamabandi to show their assent to the enhancement. The effect of this Regulation may be gathered from the decision in the case of Akshaya Kumar Dutt v. Shama Charan Patitanda 16 C. 586 ; 8 Ind. Dec. (N.S.) 387.
23. The learned Counsel for the respondents has argued that the Settlement Officer had, under Section 14 of the Regulation, jurisdiction to decide the status of the predecessor of the respondents and that as such predecessor is entered in the settlement record as a raiyat, that entry is binding on the appellant. It has to be remembered that at the time of the settlement, Bholanath Nund was the person who held directly from the Government and the settlement was directed with a view to assess the amount payable to the Government.
24. Now the first clause of Section 14, of the Regulation provides that Collectors, making or revising settlements in cases in which any dispute may exist in regard to the nature of the tenure of any person occupying the soil, shall be competent to declare in an official proceeding to be incorporated in the robekari of settlement the nature and extent of the interest actually possessed by such occupant. In the present case it is clear that there was no dispute as mentioned in the section, nor was there any official proceedings incorporated in the robekari of settlement. The appellant is not, therefore, precluded from going behind the entry in the settlement papers stating that the predecessor of the respondents was a raiyat. The report of the Sub-Deputy Collector reported that the person who had cleared portions of the land then brought under cultivation should be given rights of occupancy. His report is Exhibit 12. I may notice in passing that several of the Exhibits filed in the suit from the settlement proceedings have nothing to do with the jalpai lands but refer to the Naruamutha Estate of which the jalpai lands originally formed part. Now the Sub-Deputy Collectorhad in view, when he made his report (Exhibit 12, paragraph 11), that the tenants who had cleared the jungles at their own expense should not be liable to be ejected. He further states in his report that on the expiry of that settlement, which in fact has now happened, if Bholanath Nund or his representatives (do not) agree to pay proper rates at the fresh re-settlement, settlement will be made with them', and he adds, 'It will be good if the raiyats be made occupancy raiyats on such terms.' This report was accepted by the Board of Revenue. It is difficult to understand how, whilst Bholanath Nund was the ijaradar, the Sub-Deputy Collector could fix the status of his tenants. The object he had in view is quite clear, namely, to prevent Bholanath evicting the persons who had cleared the jungles at their own expense. It is equally clear that he never intended to prejudice the right of the Government to a proper assessment of the amount payable to them being made at a future settlement. The case of the respondents is that Bholanath having now dropped out the Government 'can receive only rent enhanced on the footing that the respondents are occupancy raiyats.' The Sub-DeputyCollector clearly had in view the protection of the persons he described as raiyats against eviction. The respondents have this as their tenure is a permanent one. The settlement proceedings in 1877 do not show that the Sub-Deputy Collector ever called for or inspected the patta that had been granted to Bholanath Nund, and too much stress must not be placed on the facts that the predecessor of the respondents is described in the settlement papers as a raiyat. Moreover, too much stress must not be placed on the use of the word 'raiyat' as used in the settlement papers. The sharp distinction that now exists was not so well recognised at that date as it has been since the passing of the Bengal Tenancy Act.
25. In my opinion the entry of the predecessors of the respondents in the settlement records of 1877 is not sufficient to rebut the statutory presumption that the respondents are tenure-holders. The lease to their predecessors was clearly one, I think, of a tenure. No one has up to the present heard of a raiyati interest in between 6,000 to 7,000 bighas of land.
26. I am unable to agree with the finding of the learned Subordinate Judge that the respondents are raiyats with a right of occupancy.On the contrary I am satisfied on the evidence that the respondents are tenure-holders.
27. One other point remains to be dealt with. Therespondents say that in any case the Court ought to settle a fair rent for the holding. But without going into the question that under the Act the entry of the status of the respondents in the Record of Rights having been found to be correct, the Court has no jurisdiction in this case to settle a fair rent, it is sufficient to say that there is no evidence on the record in this suit to show that the rent is not fair and equitable.
28. In the result the present appeals must be allowed and the suits dismissed. The respondents must pay to the appellant his costs both in this Court and the Court below.
29. We assess the hearing fee at Rs. 180 in Appeal No. 376 and at Rs. 120 in Appeal No. 383.
Teunon, J.
30. In these three appeals, I agree with my learned brother, but as the questions raised are of some importance I think, it desirable to indicate very briefly the train of reasoning by which I arrive at the same conclusion.
31. On the main questions of law that have been raised I am satisfied that the Bengal Tenancy Act, 1885, intendedto regulate the relations of the various classes of the agricultural communityapplies and was intended to apply to tenancies in respect of agricultural land, whether created before or after the passing of the Act. It follows that the definition and the presumption to be found in Section 5 are applicable in the present case. It is also, in my opinion, clear that we can disturb the rent settled, even if we were disposed to do so, only if the plaintiffs succeed in showing under Section 104H (3)(e) that in the Record of Rights their status has been wrongly recorded.
32. In deciding the question of status we have first to examine the lease or grant creating the tenancy. In this lease (Exhibit 3) it is clearly provided that the grantee shall bring the lands under cultivation by establishing tenants thereon. It follows that the tenancy thereby created is a tenure and the fact that it is open to the tenant to cultivate by himself, and that he has in fact reserved for his own cultivation or by way of a home farm some portions of the lands demised, does not militate against this conclusion, which is further supported by the considerations noticed by my learned brother.
33. On the assumption that the terms of the lease are not free from ambiguity we have next to consider the evidence of conduct, surrounding circumstances and such other matters as may throw light on the original purpose and intention of this tenancy.
34. The area leased out was 2,192 1/2 local corresponding with 3,050 standard bighas. Of this 905 local or say 1,300 standard bighas were assigned to the predecessor-in-interest of the present plaintiffs on the 24th of December 1875. TheRecord of Rights finally published in 1909-10 shows that the area as now ascertained is 2,600 bighas. The plaintshows that the lands have been measured as lying in four mouzas - Bhag Chauli, Parihara, Panchberia andChota Sijna. Exhibits 9, 10 and 11, being the settlement statements of the three mouzas first named, and paragraph 4 of the plaint show that in Chota Sijna there are roughly200 bighas, and that in the other three there are 2,400 bighas of which some 1,200 bighas are in possession of tenants paying rent in cash, some 1,000 bighas in the possession of 'bhag' tenants paying rents in kind, and only 114 in the immediate possession of the plaintiff. In order to increase their nij jote area the plaintiffs assert that the persons recorded as 'bhag' tenants have no interest in the land and are mere labourers paid in kind. One of the plaintiffs, Raipada, has deposed to the effect, and though supported apparently by defendant's witness No. 3 and also by No. 17 Ganga, who has bhagchasis of his own, is contradicted by plaintiffs' witnesses Nos. 5 and 6, and by defendant's witnesses Nos. 4, 7, 8, 9, 11 and 16. The statement that 'bhagchasis,' who are elsewhere called bhagdars, burgadars, bataidars, or adhiars, are in general mere labourers, is contrary to experience and here contrary also to the presumption arising under Section 103B of the Bengal Tenancy Act. Farther in the present case the weight of the oral evidence is against the assertion of the plaintiffs, and it is clear that they have no more than 150 bighas in their own cultivation. The course of conduct that has had this result, the kabuliyats and pattas (Exhibits 6, 43 and the E series) in which the plaintiffs or their predecessors are described as chakdars, lakherajdars and talukdars and create tenancies inperpetuity, the caste and class of the lessee Nityakali, and the area comprised in the tenancy all, apart from any presumption, lead to the conclusion that the tenancy now in question was in its inception a tenure. The evidence adduced to show that after the creation of the tenancy the lessees and their assignees cut jungle and erected embankments at very considerable expense, so far from weakening, goes to support the same conclusion, for expenditure in such directions over a large area is expected only of capitalists and middlemen.
35. Lastly, we have to examine the settlement proceedings of the year 1875-78 proceedings on which the plaintiffs-respondents place great reliance.
36. These jalpai lands were in the possession of the Salt Agency, apparently for the purpose mainly of supplying fuel for the manufacture of salt, and were made over to the Land Revenue Authorities in 1864. Theyconsisted partly of 'Mai' or revenue paying lands taken from the temporarily settled Estate Majuamutha and partly of resumed lakheraj within the ambit of that Estate in Pergana Naruamutha. On the 13th of May 1872, the Revenue Authorities made an ijara or farming settlement with one Bholanath Nund of the 140 (now 139) mahals or mauzas then and now known as the 'Sadar Mahal' Jalpai. At the survey in 1875 he or his lessees were found in possession not merely of 'Sadar Mahal' lands but also of resumed 'khurda lakheraj' (i.e., parcel not exceeding 100 bighas in area) and 'Mal' or revenue paying Jalpai lands The result was that the lands held by the predecessor of the plaintiffs were distributed over 3 'Foujis', i.e., over 3 Estates entered under separate numbers in the revenue roll, and in Appeal No. 447 we are concerned with the Sadar Mahal' Jalpai, in Appeal No 376 with the 'Khurda Lakheraj' Jalpai, and in Appeal No. 383 with the 'Mal Jalpai' lands. The settlement proceedings of 1875-78 were under Regulation VII of 1822, and in so far as the 'Mal' and 'Khurda' Jalpai lands were concerned one Radhika Prasanna Chandra, the then malik of the 'Mal Jalpai' Mahal, which bad been sold for arrears of revenue, was recognised as having a preferential claim to settlement. In respect of the 'Sadar Mahal' Jalpai Mahal, the settlement with Bholanath Nund which continued up to September 1877, was renewed on an enhanced revenue based on the assets ascertained by the Settlement Officers with effect from the beginning of the Amli year 1285 (September 1877) to the close of the Amli year 1306 (September 1899).
37. Regarding the 'Sadar Mahal' lands we have two reports by the Sub-Deputy Collector who acted as Settlement Officer, namely, Ex-habits 12 and 35, which apparently superseded the former. The Board of Revenue's sanction to the settlement at the increased revenue with Bholanath Nund is conveyed under date 15th March 1878 in Exhibit 33, while Exhibits 34 and 36 are intermediate letters.
38. Exhibit 8 is the settlement report regarding the Khurda Lakheraj lands, and the Board's approval of the proceedings and of the settlement with Radhika Prasanna Chandra is conveyed in Exhibit 42 dated 18th April 1878. Exhibits 33,' 39, 40 and 41 are letters between the Commissioner and the Board, and Exhibit 37 is the statement showing how the net revenue was arrived at.
39. Regarding the 'Mal Jalpai' lands we have the settlement report Exhibit 14 and a letter Exhibit 32 from the Settlement Officer to the Commissioner but no futher proceeding.
40. Exhibits 13 and 31, we should observe, refer to the main Estate Majuamutha with which on restoration to the Revenue Authorities in 1864, the Jalpia lands, whether Mal or resumed Lakheraj, were not amalgamated.
41. Khatiana or jamabandis of the years 1876 and 1877, that is, prepared in the course of the settlement proceedings, have also been put in evidence. They are Exhibits 15, 15(a), 17, 20, 21, 28, 30 and G to G (16) and. refer to most, if. not all,.of the nine mouzas in which the lands were then measured.
42. The Exhibits (other than 13 and 31 to which we have referred) make it clear that the Settlement Officers and the Revenue Authorities of that time regarded the so-called 'chakdar' tenants (of whom the predecessor of the plaintiffs was one) as being in the position of raiyats Indeed in Exhibit 42 regarding the Khurda Lakheraj Jalpai the Board accepts the proposal of the Commissioner 'to concede rights of occupancy to those raiyats who have cleared jungle and brought lands under cultivation and that similar rights be offered to those who may hereafter reclaim jungle and waste.' But this cannot be said to be the determination of the status of any individual tenant, and in fact no action was taken under Section 10 or Section 14 of the Regulation or on the recommendation of the Settlement Officer made in Exhibits 8, 12 and 14, apparently on the basis of the provisions of the second clause of Section 9, that pottos or kabuliyats should be exchanged on terms to be sanctioned by higher authority. In fact the only document produced by the plaintiffs is a document handed to Panchanan Barik by the Settlement Officer is Exhibit 2, a copy of the, jamabandi showing the areas of each of the three classes of Jalpai held by him in nine mouzas and the recorded rent which by the signature on the original he had agreed to pay. In Exhibit 2, Panchanan is described as a 'Jotedar', a term which, does mot serve to define the nature or conditions of his tenancy.
43. But even if we were to assume that the Board of Revenue determined that this particular tenant holding at that time 2,960 bighas with an assessable area of 2,730 bighas and a rent of Rs. 2,053 should be regarded and treated as a raiyat with a right of occupancy, this would not, in our opinion, advance the case of the plaintiffs. The status of a tenant is to be determined not so much by reference to the Revenue Regulations as by reference to the Rent Laws. Now neither Bengal Act VIII of 1869, nor the law previously in force, Act X of 1859, contained any definition of the class of tenants to be designated 'raiyats' and the use in Section 6 of each of the said Acts of the words every raiyat who should have cultivated or held land' led to uncertainty and confusion. In the result superior tenants intermediate between 'the proprietors and the cultivators' were not infrequently considered to be or were spoken of loosely as raiyats. Whether the present plaintiffs or their predecessor were raiyats' 'undertenants' or 'intermediate tenants' was a question which the Board apparently did not consider and possibly for its determination had not the necessary materials.
44. But even if we assume that the Board did determine that the plaintiffs' predecessor was a raiyat within the meaning of Section 6 of Act VIII of 1869, the Board did not thereby determine that they were raiyats within the definition to be found in Section 5 of the Bengal Tenancy Act. It is this Act which now governs the tenancy now in question, and there is, therefore, nothing in the opinion or decision of the Board, expressed or arrived at in 1878, to preclude the Secretary of State from contending that the plaintiffs are tenure-holders or to rebut the presumption arising under Section 5.
45. It is suggested that Section 19 of the Act should prevent our treating the plaintiffs as tenure-holders, but we are not of that opinion. That section, in our opinion, can refer only to persons who being raiyats within the definition to be found in Section 5 had acquired a right of occupancy prior to the passing of the Act. No injustice results, as has been suggested, to the plaintiffs, for though not classed as raiyats with rights of occupancy, they have been recorded as permanent tenure-holders with, therefore, equally permanent interests in the land.
46. For these reasons I hold that the plaintiffs-respondents are tenure-holders and agree in the order proposed by my learned brother.