Ramji Ram and Others vs Bansi Raut and Others

Jwala Prasad, A.C.J.

These appeals arise out of suits instituted by the plaintiffs to eject the defendants and to recover mesne profits. A number of suits were instituted by the plaintiffs, but we are concerned in this case only with ten of them.

The Munsif decreed the suits. On appeal the District Judge set aside the decision of the Munsif and dismissed the suits by his judgment, dated the 16th March, 1922. The plaintiffs are therefore appellants before us.

The plaintiffs are the 16 annas proprietors of village Jaitpore, thana Manjhi, District Saran. Their case is that the lands in dispute are their zerait lands and that these lands along with other lands of the village were in their direct cultivation by growing indigo thereon in connection with their indigo business and that after the said business ceased, the lands were settled with defendants under kabuliyats, the terms of which have expired. The defendants, on the other hand, allege that they have acquired occupancy rights in the lands in question and that they are not liable to be ejected therefrom.

There have been two survey and settlement operations in this village: one in 1900 and the other in 1920. The lands in the record-of-rights have been shown as tenancy lands in possession of the defendants. In some of the cases the lands have been recorded in the settlement record as "zerait dakhilkar," in some (Second Appeal 718) "zerait gair dakhilkar," in one case "zerait qaimi," and in another simply "qaimi," in the revisional settlement. "Zerait qaimi," "zerait gair dakhilkar," and "zerait dakhilkar," are words of art introduced by the Settlement Officers with the import attributed to them in the "Guide and Glossary to the Survey and Settlement Operations in the Patna and Bhagalpore Divisions "prepared and printed under the orders of Government and edited by the Directors of Land Records (1907). The terms "zerait qaimi" and "dakhilkar" have been bracketed and explained as being descriptive of the status of a tenant who has acquired occupancy rights in respect of zerait lands with the following note "as he (the tenant) can have only occupancy and not settled rights in respect of such lands, the entry zerait qaimi is not so correct from a technical point of view as "zerait dakhilkar." The term "zerait gair dakhilkar" has not been separately defined, but from the definition of the words "gair dakhilkar" as non-occupancy raiyat "zerait gair dakhilkar" would upon the analogy of the meaning of the words "zerait dakhilkar" in the language of the Settlement Officers be "descriptive of the status of a tenant "who has acquired non-occupancy rights in respect of zerait land." In accordance with the note against the words "gair dakhilkar" usually the number of years for which he (gair dakhilkar raiyat) has held the land is added. The word "qaimi" has been defined as meaning "settled raiyat." The word "zerait" has been defined in the said glossary as "the proprietor''s private lands." In the remarks column of the glossary against the word "zerait" it is stated "entered in the status column of khatians on which details are recorded of lands found to be zerait, kamat, nij jote, khamar, etc., within the meaning of Section 120, Bengal Tenancy Act." "Settled raiyat" has been defined in Section 20, Chapter V of the Bengal Tenancy Act thus:--"Every person who for a period of twelve years, whether wholly or partly before or after the commencement of this Act, has continuously held as, a raiyat land situate in any village whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village." In this connection it is well to note the definition of an occupancy raiyat defined in Section 21 of the Bengal Tenancy Act:--"Every person who is a settled raiyat of a village within the meaning of the last foregoing section shall have a right of occupancy in all lands for the time being held by him as a raiyat in that village."Occupancy raiyats are raiyats having occupancy rights in the lands held by them and non-occupancy raiyats are those raiyats not having an occupancy right as defined in Section 4 of Chapter II of the Bengal Tenancy Act. Occupancy raiyats are dealt; with in Chapter V and non occupancy raiyats in Chapter VI of the Act. After dealing with different kinds of raiyats defined in Section 4 of the Act and the rules regulating the relationship of landlord and tenant, in Chapter X provision is made for the preparation of a record-of-rights and settlement of rents. The two record-of rights of 1900 and 1920 referred to above were prepared under Chapter X of the Act. Then comes Chapter XI which is headed "Non-accrual of occupancy and non-occupancy rights and record of proprietors'' private lands." Section 116 in that Chapter says:

Nothing in Chapter V shall confer a right of occupancy in and nothing in Chapter VI shall apply to lands acquired under the Land Acquisition Act, 1894, for the Government or for any local authority or for a Railway Company, or lands belonging to the Government within a cantonment, while such lands remain the property of the Government or of any local authority or Railway Company or to a proprietor''s private lands known in Bengal as khamar, nij or nij jote, and in Bihar as zerait, nij, sir, or kamat, where any such land is held under a lease for a term of years or under a lease from year to year.

Section 117 provides for the Local Government to make an order directing the Revenue Officer to make a survey and record of all the lands in a specified local area which are the proprietor''s private lands. Section 120 defines the lands which are to be recorded as the proprietor''s private lands and the nature of the evidence required to prove the lands to be such lands. Under this section land which is proved to have been cultivated as khamar, zerait, sir, nij jote or kamat 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 Act, and (6) cultivated land which is recognised by village usage as proprietor''s khamar, zerait, sir, nij, nij jote or kamat, are directed to be recorded as proprietor''s private lands. Clauses 2, 2(a) and 3(a) of the section say:

In determining whether any other land ought to be recorded as a proprietor''s private land, the officer shall have regard to local custom and to the question whether the land was before the second day of March, 1883, specifically let as proprietor''s private land, and to any other evidence that may be produced; but shall presume that land is not a proprietor''s private land until the contrary is shown.

2(a). Notwithstanding anything contained in any agreement or compromise, or in any decree which is proved to his satisfaction to have been obtained by collusion or fraud, a Revenue Officer shall not record any land as a proprietor''s private land, unless it is proved to be such by satisfactory evidence of the nature described in Sub-section (1) or Sub-section (2).

(3)(a). If any question arises in a Civil Court as to whether land is or is not a proprietor''s private land, the Court shall have regard to the rules laid down in this section for the guidance of Revenue Officers.

In preparing the record-of-rights under Chapter X of the Act, the Settlement Officer recorded the lands in dispute as zerait qaimi. u/s 119 when a survey and record-of-rights of a proprietor''s private lands is made the provisions of Sections 103-A, 103-B, 106, 107, 108, 109 and 109-A shall apply. We are concerned in this case with Section 103-B, Clause (3) which says:

Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.

Therefore the entries in the record-of-rights in the present cases of the lands in suit being "zerait qaim," "zerait dakhilkar" and "zerait gair dakhilkar" shall be presumed to be correct until the contrary is proved. In the light of the definition of zerait quaimi given in the glossary and of the definition of zerait given in Section 120 of the Bengal Tenancy Act the presumption would be that the lands in question are the zerait lands of the proprietor within the meaning of Section 120 of the Bengal Tenancy Act in which the defendants have acquired the status of occupancy raiyats or non-occupancy raiyats as the case may be, i.e., the status of tenants having occupancy or non-occupancy rights defined to Chapters V and VI of the Bengal Tenancy Act. The landlords claimed the lands to be their zerait lands. Mr. Nirsu Narain Sinha says that the landlords ought to prove that the lands are really their zerait such as have been defined in Section 120 of the Bengal Tenancy Act and that the landlords not having given evidence of a character mentioned in Clauses (1) and (2) of the said section the lands should be held not to be the zerait lands of the proprietor but as raiyati land in which the acquisition of occupancy or non-occupancy rights is not barred by Section 116 of the Act. I cannot agree with this contention. The record-of-rights was prepared under the statutory provisions contained in the Bengal Tenancy Act with specific directions in regard to these zerait lands enjoining upon Revenue Officers to record such lands only as zerait which fulfil the conditions laid down in Section 120 and which are proved before him by such evidence as is mentioned in Clause (2) of that section. The presumption is that before the Settlement Officer the evidence was such as is required by Section 120 and that upon that evidence he recorded the lands as zerait and that the entry of the lands as such is correct until the contrary is proved, The contrary is alleged by the defendants and therefore until the defendants prove that the lands are not zerait the entry will prevail and the lands in question will be deemed to be the zerait lands of the proprietor. The onus therefore of proving the lands to be zerait was not upon the plaintiffs, and the onus to prove the contrary was upon the defendants.

The lower Appellate Court is wrong in law in interpreting the record-of-rights as showing that the lands are not the malik''s zerait and in throwing the onus upon the plaintiffs proprietors of proving that the lands are the malik''s zerait. As a result of misplacing the onus, it has held that the plaintiffs failed to prove that the entry in the settlement record as to the lands not being malik''s zerait is incorrect. The record has entered the lands as the malik''s zerait u/s 120 of the Bengal Tenancy Act, though it also records that the tenants have acquired in those zerait lands the rights of occupancy or non-occupancy raiyat. The plaintiffs have to displace the entry of the acquisition by the defendants of occupancy or non-occupancy rights in their zerait lands. The plaintiffs'' case is that the lands in suit along with their other zerait lands were in their direct possession by growing indigo therein in connection with their indigo business and that after the said business ceased the lands were settled with the defendants under kabuliyats. The learned District Judge says that the factory registers (Exhibits Nos. 3, 5, 6 and 7) show that indigo was cultivated by the factory in many bighas of land in village Jaitpore prior to 1885 but this, he says, does not prove the lands in question to be the zerait as there is nothing to show that the lands mentioned in the factory books include any of the lands with which we are concerned in the present cases. The plaintiffs expressly asserted in their plaint that the lands in suit were formerly the lands in which indigo used to be grown. There is no denial of this fact in the written statement of the defendants and in Second Appeal No. 722 (First Appeal No. 401 and Suit No. 519) referred to above the defendants expressly admitted in their written statement, para. 3, that the lands in suit formed part of those lands (that is, the lands in which indigo was grown). As observed above, there was no denial in the other cases also. There was, therefore, no question as to the identity of the lands in suit with the indigo lands of the plaintiffs. The documents produced by the plaintiffs show that the indigo lands were their zerait lands.

The Munsif upon a consideration of the voluminous documents of the plaintiffs came to the conclusion that the indigo lands were the zerait lands of the plaintiffs. The learned District Judge has illegally refused to take those documents into consideration on account of the misapprehension regarding the identity of the lands referred to above. The finding of the Munsif that the lands were the zerait lands based upon that evidence has not been, therefore, legally displaced by the learned District Judge. The rent receipts granted to the defendants describe the lands as zerait lands. Therefore even if the onus lay upon the plaintiffs to prove the lands as zerait, the plaintiffs had proved it by evidence which was not taken notice of by the Court below on account of the misapprehension referred to above. The learned District Judge has referred to no evidence on behalf of the defendants to prove that the lands were the raiyati lands, the onus of which was upon them in view of the entry in the survey record-of-rights. Therefore the view of the District Judge that the lands are not the malik''s zerait lands is wrong in law as well as on facts. The defendants except in the one case referred to above did not expressly deny that the lands were the malik''s zerait lands. The view of the learned District Judge on the point is, however, against the pleadings, the entry in the survey record-of-rights and the evidence in the case.

Therefore the lands must be held to be the malik''s zerait lands. The survey entries show that the defendants acquired rights of occupancy or non-occupancy as the case may be in all the cases, except in one (Second Appeal No. 718) where they have been recorded as pure qaimi in the revisional settlement though in the original settlement as zerait dakhilkar. The entry being in favour of the defendants as regards the acquisition of the occupancy rights, the onus of rebutting the presumption afforded by that entry is upon the plaintiffs. The question then is how far that onus has been discharged by the plaintiffs. In considering this question the Court below has again overlooked the pleadings and the effect of Section 116 of the Bengal Tenancy Act. The defendants in all the cases, except the one referred to above (Second Appeal No. 722) admit that they were inducted upon the lands by means of settlements from the plaintiffs on a particular date, mostly by means of kabuliyats. Their case is that they continued to be in possession even after the expiry of the lease and in some cases it is said that there was no lease in the interval between the registered and unregistered Kabuliyats. There was no case made by the defendants in their written statement, except perhaps in one or two cases, that the lands in dispute were part and parcel of their old guzashta lands. The trend of the written statement appears to be that the defendants pleaded that they were settled raiyats of the village and consequently they acquired u/s 20 of the Bengal Tenancy Act rights of occupancy in the lands in dispute. The learned District Judge expressed certain doubts as to the genuineness of the kabuliyats relied upon by the plaintiffs. He, however, did not come to a clear finding upon the point and seems to have assumed for the purposes of his decision that the kabuliyats were genuine. The learned Munsif has given reasons supported by the evidence referred to by him for his conclusion that the kabuliyats were genuine. The written statements admit that in most cases the defendants had executed kabuliyats when the lands were settled with them. They deny, however, the subsequent kabuliyats. The decision of the learned Judge again seems to have been based upon misapprehension of the pleadings. He has, however, not displaced the findings of the Munsif that the kabuliyats were genuine. The learned District Judge, as observed above, has assumed that the kabuliyats were genuine and assuming that, he has held that the defendants acquired raiyati interest in the lands and were not liable to be ejected after the expiry of the leases. The appeal will, therefore, be dealt with upon the assumption that the kabuliyats set up by the plaintiffs are genuine. With these observations, the appeals may now be dealt with separately.

Second Appeal No. 722 (F.A. No. 401 Suit No. 519).

The lands in dispute in this case have been shown in both the settlement records as "zerait qaimi" with the remark in the Revisional settlement record of 1920 that the rent for the lands in dispute is included within Khata No. 348 of the defendants. The lands in question, as held already, were the zerait lands of plaintiffs, both under the entry in the record-of-rights and upon proof in the case, and that they were held in direct possession by means of indigo cultivation for a long time. The defendants, no doubt, say that the lands are not the zerait lands and that they are part of their old raiyati lands, but this has not been proved or found. On the other hand, the defendants admit in their written statement, para. 3, that the lands in suit formed a part of indigo lands. The defendants further admitted that the lands in question were settled with them by means of a registered patta, dated the 14th December, 1887, and "that the entry made in the survey papers is based on the patta executed in 1887." Therefore they having failed to prove their previous possession, they were first inducted upon those lands by means of the aforesaid registered kabuliyat. They denied, however, that the lands in question were settled by means of any kabuliyat during the time that the estate of the plaintiffs was in the hands of a Receiver. They also denied that the lands in question were ever in possession of the plaintiffs since the survey operations of 1900 as their zerait lands. The plaintiffs produced unregistered annual kabuliyats from 1317 to 1326 P. The learned District Judge says: "It is clear from the rent receipts that the lands in suit were amalgamated with the defendants'' ancestral holding as long ago as 1309. The road cess return of the factory manager, dated 1903 (equal to 1310 F.), shows a consolidated jama (vide Exhibit C) but in 1324 F. the plaintiffs tried to separate the lands into two parcels again, evidently with an eye to the revisional settlement proceedings. The rent receipts for 1324 (Exhibits A/115 and A/116) have been corrected in red ink accordingly. In 1325 F. rent suits were brought separately for the two parcels and ex parte decrees were obtained [Exhibits 8(a) and 8(b)]." As to the amalgamation referred to by the District Judge the defendants'' statement in the written statement, paragraph 9 is as follows:

"When the time for the revisional survey approached Babu Raj Bansi Kuer, tahsildar of the plaintiffs, took away the receipt for 1324 from these defendants and cancelled it with red ink; and instead of Rs. 84-14-9 being the total of both the jamas he put down Rs. 66-14-9, as the jama of the ancestral lands. On the basis thereof he wanted to have two jamas recorded during the recent survey operation but did not succeed. At first a single parcha was given for both the jamas; but later on Babu Raj Bansi Kuer fraudulently got two separate Khatas prepared, while the rent was entered jointly." The revisional settlement record shows that two Khatas were entered in the name of the defendants; one in respect of the lands in dispute and the other with respect to their ancestral holding, Khata No. 348. This fact does not seem to have been taken into consideration by the learned District Judge. The defendants'' case is that there were two Khatas and the lands in dispute were separate from their ancestral Khata but that subsequently they were amalgamated in about 1902 or 1903 and again the landlords through their tahsildars separated the two Khatas and the Survey Officers recorded their holdings in two Khatas. The amalgamation of the lands in dispute with the ancient Khata does not in any way affect the case of the plaintiff and the entry in the survey record-of-rights in this respect is in their favour. The identity of the lands of the two Khatas is not in dispute. In other words, the lands in dispute were the lands which were settled with the defendants by means of registered kabuliyats (Exhibit Q) for a term of 5 years. Except the receipts and the road cess return there is nothing to show that the landlords and the defendants agreed that the two holdings should be so incorporated and amalgamated and that they should be treated alike with regard to the status of the defendants therein. The learned District Judge has, therefore, erred in law in basing his conclusion upon the amalgamation in 1902 or 1903 and in not drawing proper and legal inference from the separation of the two holdings and the entry in the record-of-rights showing that the two holdings were separate. Therefore the status of the defendants with respect to the land in dispute is to be determined by the fact of the settlement made with them in 1887 by virtue of which they were inducted upon this land.

The contention on behalf of the plaintiffs is that the defendants could not acquire any right of occupancy in these lands inasmuch as they were inducted upon these lands by means of a registered lease for a term of years. This contention is based upon Section 116 of the Bengal Tenancy Act already quoted above. The question is whether the defendants were brought upon this land under a lease for a term of years or a lease from year to year. The defendants admitted in their written statement referred to above that they took this land by means of a registered lease, dated the 14th December, 1887. They also admit that the entry in the survey record-of-rights is based upon the aforesaid patta, the registered lease (Exhibit Q). During the continuance of the lease therefore the defendants could not acquire any raiyati interest in the lands in question, occupancy or non-occupancy. After the expiry of the lease they became trespassers. The defendants, however, continued to be in possession and the learned, District Judge found that receipts were granted to them and he says they were holding from 1295 F. to 1304. There are unregistered annual kabuliyats from 1317 to 1326. Mr. Nirsu Narair Sinha says that during the interval between 1299 when the lease of 1887 expired and 1317 the defendants were holding without any lease and therefore Section 116 did not apply and they acquired occupancy rights during that period. The answer to that is that they were holding under an expired lease and therefore u/s 116 of the Transfer of Property Act read with Section 51 of the Bengal Tenancy Act they were holding over under the same conditions as the registered kabuliyats of 1887 and they became tenants from year to year. That tenancy from year to year was further converted in 1317 to a yearly tenancy under registered kabuliyats. In the present case Section 116 of the Bengal Tenancy Act applies and the defendants could not acquire rights of occupancy or non-occupancy. They further held the land under the last unregistered kabuliyat of 1326 on the expiry of which they became trespassers. As such they were liable to be ejected in a suit brought within 12 years of the expiry of the lease of 1326 under the decision of their Lordships of the Judicial Committee in the case of Jaganath Das v. Janki Singh (1). The suit is within 12 years from that date and is therefore not barred. The Court below misconceived the meaning and scope and effect of the entry in the survey record-of-rights in holding that the entry is against the landlord''s claim of the land being zerait and in requiring them to prove that it is so. The decision of the District Judge is therefore set aside and the decision of the Munsif is restored.

Second Appeal No. 716 (F.A. No. 396, Suit No. 492).

The defendants in this case are the same as those in Second Appeal No. 722. In the original record-of-rights the lands in dispute were entered in the name of Lachuman Dusadh as zerait gair dakhilkar and in the revisional settlement it is entered in the name of the defendants as zerait dakhilkar, rent being included with Khata No. 348. The plaintiff''s case is that the land was their zerait land and was first held by Lachuman Dusadh and afterwards the defendants by means of unregistered annual kabuliyats for the years 1318 to 1327. The defendants'' case is that Lachuman was their ploughman and held this land in lieu of wages and after his death the defendants resumed it. The entry in the survey record-of-rights records this land as separate from the ancestral holding of the defendants. The claim of the defendants to the land in question as a part of their ancestral holding is therefore against the entry in the record-of-rights. In fact it appears that they took the lands by means of unregistered annual kabuliyats in 1318 after the death of Lachuman Dusadh and therefore their occupation of the land commences from that year. The last kabuliyat being of 1327 the plaintiffs were upon the principle laid down in the previous case entitled to eject the defendants within 12 years of the expiry of the lease. It has already been shown that the entry "zerait gair dakhilkar" in the vocabulary of the Settlement Officers means that the tenants have acquired non-occupancy rights in the zerait lands of the proprietor. Apart from anything else the entry does not help the defendants, for it is against their contention that it was part of their ancestral occupancy holding. According to the entry the defendants had not held it for 12 years or they would have been recorded as "zerait dakhilkar" and this supports the plaintiff''s case that the defendants were brought upon the land in question under the kabuliyat of 1318. Here also the Court has misconceived the onus and therefore the judgment and decree of the District Judge are set aside and those of the Munsif restored.

Second Appeal No. 720 (F.A. No. 392, Suit No. 495).

In this case the land has been recorded both in the original and revisional settlement record as zerait gair dakhilkar. The defendants admit in para. 3 of their written statement that the plaintiffs settled the lands in dispute with the ancestors of the defendants under a patta, dated 1297. There is no denial in the written statement of the plaintiffs'' claim that the lands are zerait lands. In any case the defendants were first inducted upon the lands by means of an unregistered patta and then they held under registered kabuliyats from 1309 to 1313 and under unregistered kabuliyats from 1318 to 1327. For the reasons given above the plaintiffs are entitled to eject the defendants after the expiry of the lease of 1327. The defendants claim right of occupancy in these lands on the ground that they are the settled raiyats of the village under Sections 20 and 21 of the Bengal Tenancy Act. The learned District Judge has accepted this contention. He has, however, overlooked the provisions of Section 116 of the Act which bars the application of Chapter V in which Section 20 occurs, to the case of zerait lands where the lands are held under a lease for a term of years or from year to year. In this case too the decision of the learned District Judge will be set aside and that of the Munsif restored.

Second Appeal No. 715 (F.A. No. 397, Suit No. 506).

Both in the original and in the revisional settlement the lands were recorded as zerait gair dakhilkar with this difference that in the original settlement the area was 1020 acres and in the revisional settlement the area was 164 acres. In this case the defendants admit that the lands were settled with them under a registered patta (Exhibit 1-P). The entry shows that the defendants have held it for less than 12 years and this supports the case of the plaintiffs, and in fact it is admitted by the defendants that their occupation of the land commenced from the execution of the aforesaid lease. The defendants afterwards held the land under annual kabuliyats from 1318 to 1327 and therefore the plaintiffs are entitled to eject them on the expiry of the term of the last lease. This appeal is also decreed, the decision of the District Judge is set aside and that of the Munsif is restored.

Second Appeal No. 723 (F.A. No. 394, Suit No. 501.)

In this case the land was recorded in the original settlement in the name of Bhardul Hajam as zerait gair dakhilkar and in the revisional settlement in the names of the defendants as zerait gair dakhilkar. The defendants were brought upon the land by means of unregistered annual kabuliyats. The last one expired in 1327 and therefore the plaintiffs are entitled to eject them. Here also the decision of the learned District Judge is set aside and that of the Munsif is restored.

Second Appeal No. 719 (F.A. No. 409, Suit No. 498).

In the original settlement the land in question was recorded in the name of Dukhan Rai and Kalu Rai as zerait gair dakhilkar. In the revisional settlement it was recorded in the name of Banai Raut as zerait gair dakhilkar. The defendants'' case in para. 3 of their written statement is that the lands in dispute were formerly settled with Dukhan Rai and others and as they relinquished the land the plaintiffs settled the same with the defendants by means of a registered patta (Exhibit B-3) from 1309 to 1313. The defendants are not the settled raiyats of the village They were brought upon the land under registered lease and afterwards they held the land under unregistered annual kabuliyats from 1318 to 1327. For the reasons given in the previous cases this appeal is also decreed, the decision of the learned District Judge is set aside and that of the Munsif restored.

Second Appeal No. 725 (F.A. No. 391 Suit No. 504.)

This is the strongest case for the defendants. In the original settlement the land is recorded in their names as zerait gair dakhilkar. In the revisional settlement the land has been recorded as zerait gair dakhilkar. The registered kabuliyat is from 1309 to 1313 and their unregistered annual kabuliyats from 1318 to 1326. The registered kabuliyat is a year or two later than the original settlement record and therefore they were in possession of this land before the registered kabuliyat was executed. It is therefore said that they were inducted upon the land not under the kabuliyat aforesaid but verbally and therefore Section 116 does not save the accrual of non-occupancy rights which the settlement record has shown inasmuch as it is contended that that section prevents the accrual of rights of occupancy and non-occupancy only where the land is held under a lease for a term of years or a lease from year to year. No doubt there are authorities to show that in order to avail himself of the provisions of Section 116 the landlord must take the precaution of settling zerait lands under a lease for a term of years or a lease from year to year and consequently where he brings the tenant upon the land under a verbal lease he is not entitled to the benefit of Section 116. The trend of the authorities no doubt favours this contention but after having given due consideration to the point and having considered fully the object and scope of the Bengal Tenancy Act, I doubt whether the contention is sound and the view taken by the various authorities is correct. It appears to me that the Bengal Tenancy Act purports to deal principally with raiyati lands and to deal with the relationship between landlord and tenant. It seams to me that the proprietor''s private lands are wholly outside the scope of the Bengal Tenancy Act and settlement of those lands are governed not by the Bengal Tenancy Act, but by the codified law in the Transfer of Property Act. The concluding words of Section 116 are not happy and may give rise to the view hitherto advocated that the accrual of occupancy and non-occupancy rights in zerait lands will only be barred in cases where the landlord settles the land with a tenant under a lease for a term of years or under a lease from year to year which read with Section 107 of the Transfer of Property Act means a registered lease in writing. These words in my view were put down in Section 116 in view of the language in Section 20 of the Bengal Tenancy Act, which says that, "Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyati land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village." Now a lessee of zerait land is not a raiyat. He is a tenant of a class outside those enumerated in Section 4 of the Bengal Tenancy Act. This point has been made clear in my decision in the case which went to the Privy Council: Mahanth Jagarnath Das s Janki Singh AIR 1922 P.C. 142. A lessee of a raiyati land whether holding verbally or under a lease acquires the status of a settled raiyat provided he holds it for 12 years. In order to prevent any confusion arising between the holders of two kinds of land, one mentioned in Section 20 and the other in Section 116 of the Bengal Tenancy Act, the legislature wanted to make it clear that even where zerait lands are under a term of years or under a lease from year to year no occupancy or non-occupancy right would accrue, for if it is held otherwise than under a term of years or from year to year the tenant becomes a tenant-at-will and a tenant-at-will cannot acquire a right of occupancy or non-occupancy, and he can be turned out at any moment and even without any notice. No question of such rights can arise in the case of a tenant-at-will. Therefore the section needed providing only against a lease for a term of years or under a lease from year to year. Now let us see what the defendants say in their written statement in this case. They say that the land was settled with their ancestors; so they came upon this land by means of a settlement and they did not disclose in the written statement when and how the lands were settled with them. It is obvious, however, from the entry in the record-of-rights that the lands were settled not long before the registered kabuliyat of 1902; otherwise they being settled raiyats of the village would have been entered as occupancy raiyats. They might have held the zerait lands just before the rights of the parties were settled by means of the registered kabuliyat in 1309. The lands being zerait and the defendants holding under a registered kabuliyat--these being the only two conditions required in Section 116, they could not claim to have acquired any rights under Chapter VI or Chapter V of the Bengal Tenancy Act relating to occupancy or non-occupancy rights. It may, however, be contended that Section 178 would come in and affect the registered kabuliyat in question. That section only bars a contract against the accrual of occupancy rights. No occupancy right could be taken away by any contract between landlord and tenant but before the registered kabuliyat in the present case was executed no raiyati interest was created at all in favour of the tenant. Therefore Section 178 does not apply. I would therefore in this case also hold that the tenants were brought upon the land by means of settlement and the last settlement expired in 1326 at the expiry of which they were liable to be ejected by the landlord. The appeal in this case also is decreed, the decree made by the Court below is set aside and that of the Munsif is restored.

Second Appeal No. 726 (F.A. No. 390, Suit No. 510).

In this case in both the original and the revisional settlement the land is recorded as zerait gair dakhilkar. The plaintiffs filed a registered kabuliyat from 1309 to 1318 and unregistered kabuliyats from 1319 to 1327. The same remarks apply to this case as to the previous cases and the appeal is therefore decreed, the decision of the District Judge is set aside and that of the Munsif is restored.

Second Appeal Nos. 727 and 718 (F.A. Nos. 385 and 395, Suit Nos. 500 and 505),

The defendants are the same in these two suits.

As regards No. 718 the lands were recorded in the original settlement in the name of Lachuman Dusadh and Hira Kuer and Dhoba Ahir as zerait gair dakhilkar. In the revisional settlement they have been recorded in the names of the defendants as qaimi, rent included in Khata. No. 42. This is under misapprehension and has been fully rebutted by evidence. In No. 727 the lands are recorded in the names of Lachuman Dusadh, Hira Kuer as zerait gair dakhilkar and in the revisional settlement in the names of the defendants as zerait gair dakhilkar, rent included in Khata No. 422. These defendants were not upon the land when the first settlement record was prepared in 1900. They were subsequently brought upon the land and the plaintiffs show that they executed registered kabuliyat for the year 1309 and thereafter unregistered kabuliyats from 1318 to 1327. Under the survey record-of-rights it is obvious that these tenants were inducted upon the lands under a lease for a term of years. Such is also their written statement and they did not expressly deny the nature of the lands being zerait and admitted that they occupied the land by means of settlement. The defendants in the present case are different in case from those in the original record and this corroborates the case of the plaintiffs that the defendants were subsequently brought upon the land under annual leases. The leases expired in 1327; for the reasons given in the previous cases, these defendants are also liable to be ejected, and the decision of the District Judge must be set aside and that of the Munsif restored.

The result is that all these appeals must be decreed and the decrees made by the learned District Judge must be set aside and those of the Munsif restored.

The respondents have filed an application with a certified copy of the judgment of the District Judge of Saran in respect of certain ejectment suits brought by the plaintiffs against other tenants and in respect of other lands in the village. This judgment is wholly irrelevant for the purposes of this case and we, therefore, reject the application and refuse to accept the judgment as evidence.

The appellants are entitled to their costs throughout.

Kulwant Sahay, J.

I agree that all the appeals should be decreed.