Rajani Kanta Ghose and another vs Secretary of State for India

Lord Sumner

A Record of Rights, under Chapter 10 of the Bengal Tenancy Act (VIII of 1885), was published on the 2nd September 1908, under which the appellants were entered as "tenure-holders" of Mouzah Rupnarayan Chur, which is situated on the river Hugli within the Khas Mahal of the Government in the District of Midnapur. The rent, which had been payable under the previous settlement, was on this occasion considerably enhanced. Being aggrieved by this increase, the appellants brought the present suit under section 104 (H) of that Act for a declaration that they were "raiyats" and not "tenure-holders" and for a reduction of the rent to a fair and equitable sum. Whether they really are "raiyats" ultimately depends on questions of fact: one must "look to the attendant circumstances to judge of the purpose," for which the land was acquired:

Debendra Nath Das v. Bibudhendra Mansingh Bhramarbar Rai, 1918 45 Cal. 805 = 45 I. C. 411 = 45 I. A. 67 (P.C.). The trial Judge decided in their favour, but his decision was reversed on appeal.

It lay on the appellants to rebut the statutory presumption that the Record of Rights was correct (section 103 B) and, as the holding exceeded 100 bighas, the further statutory presumption that the holders of it were "tenure-holders" section 5 (5). Furthermore, the time and circumstances of the origin of their rights were in this case not mere matter of conjecture or of inference, but were proved in substance and in considerable detail. The evidence is examined at length in the judgment under appeal. Rupnarayan, the plaintiffs'' original predecessor-in-title, was not a cultivator. He was by caste a Kayastha and by occupation a petty Government official, a local salt daroga. Before his time the Government had no tenant on the land, which had been diluviated and was unoccupied. In the early thirties of the last century he found money - and no small sum either - with which he began to build embankments and other works to reclaim the chur lands then reforming in the river bed. The chur afterwards bore his name and eventually the land was brought into cultivation.

It is certain that, at some later date actual cultivation was being done by peasants, who paid rent to Rupnarayan, as they do still to his successors, and there is no evidence that Rupnarayan or his sons or his servants ever actually cultivated a single bigha. He did not reside on the chur, but followed his avocation elsewhere. A roidad of 1844, relied on by the plaintiffs, which narrates the origin of this reclamation, describes him as having been of Majipara in the district of Nadia. These simple facts led the High Court to the conclusion that he was not what the Bengal Tenancy Act (section 5) calls a "raiyat"; he was, in fact, a middleman, and a very useful one. The question is, "For what purpose was the land originally acquired?" The answer is plain: He reclaimed the chur in order to make money out of it by letting land to cultivators. In view of these facts, it is impossible to say that the High Court were wrong in holding that he was neither a cultivator nor a raiyat, in the sense in which that term is used either in the Bengal Tenancy Act or in ordinary speech. That being so, the plaintiffs'' tenure, which was derived from him, was not raiyati tenure, and their case failed.

It is true that they produced a series of documents beginning about 1840 and coming down to 1882, and relied on them as showing that this chur had been reputed to be of raiyati tenure, but until 1879 none used that word. At most they were consistent with raiyati tenure, if that tenure could otherwise be established. In themselves they were neutral and obscure. In their Lordships'' opinion the learned trial Judge placed on them a value which was higher than they could bear, and appears to have found support for the view which he took of the plaintiffs'' documents in the view which he took of the defendants'' witnesses, namely, that they were perjurers.

In 1879, forty odd years after Rupnarayan''s right had accrued, whatever it really was, someone served the plaintiffs with a notice of enhancement of rent under Act VIII of 1879 as being raiyats, and in 1882 the Board of Revenue, in pronouncing on their petition for reduction of the recently settled rental, point out that the petition laid claim to a hereditary and transferable tenure without showing any justification for it, and observe that in 1845 and recently the tenure had been in fact treated as raiyati, a view which the documents produced only doubtfully support. After allowing the fullest weight to these official documents as evidence, which is not considerable, their Lordships must observe that the first does not purport to have been prepared by any one who had knowledge of the facts, and that, if the second rested, as seems to be the case, on the documents produced by the plaintiffs at the trial, its statements are only doubtfully supported by them, and they are unable to think that these records are sufficient, even in conjunction with the earlier documents produced, to rebut the above-mentioned presumptions, or to establish that the appellants rights are those of occupancy raiyats.

Section 19 of the Bengal Tenancy Act saved rights, accrued and existing before it came into force, and no doubt the nature of those rights must be judged in accordance with the law as it stood when they arose unless subsequent changes in the law have operated to alter them. It is contended that not only were the terms "raiyat" and "tenure-holder" undefined by any statute before 1885, but that the definition then given to them did not reproduce the meaning which they had previously borne, and that, in fact, in the middle of the nineteenth century "raiyat " would have been the term to apply to Rupnarayan, even though he reclaimed. Even before the Bengal Tenancy Act came into force the word "raiyat" did not include a tenant reclaiming the land merely in order that it might be cultivated by others paying rent to himself and without any intention of cultivating on his own account, and that accordingly he acquired and passed on a raiyati holding such a tenant could not acquire and pass which, though not raiyati within the statute for the purposes of its definition, would still be within it for the purpose of the relief given by section 104 (H). No decision was produced to this effect; the judgment of Field, J., in the case of Durga Prosonno Ghose v. Kalidas Dutt, 1881 9 C.L.R., 449. When carefully examined, has clearly a different import. No universal definition of a rayati interest was there laid down. No instance was cited to their Lordships of such a use of the word "raiyat," and the use of the words "cultivated or held" in the general Tenancy Act (No. X of 1859, section 6) has no such effect, and therefore need not be particularly examined.

The appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed with costs.