Judgement

Appeal from a judgment and decree of the High Court (July 11, 1913) reversing a decree of Richardson J.

The suit was instituted in the Court of the Settlement Officer of Dompara by the respondent (a minor suing by a manager appointed by the Court of Wards) against the appellant. It was claimed that an entry in the record of rights prepared by the Assistant Settlement Officer under the Bengal Tenancy Act, 1885, was erroneous, in that it recorded the status of the tenant under a lease granted by the respondent in 1901, and assigned to the appellant in 1907, as that of a raiyat and not that of a tenure-holder.

The facts of the case, together with the material terms of the lease and the relevant provisions of the above Act, appear from the judgment of their Lordships.

Law Rep. 45 Ind. App. 67 ( 1917- 1918) Debendra Nath Das V. Bibudhendra Bhramarbar Roy

2

The High Court, upon appeal under the Letters Patent, held, reversing Richardson J., that the tenant was a tenure-holder. The learned judges (Jenkins C.J. and Mookerjee J.) said that, the area being over 100 standard bighas, it was to be presumed under s. 5, sub-s. 5, that the tenant was a tenure-holder unless the contrary were shown. The terms of the lease negatived the contention that the intention was that the land should be reclaimed and subsequently be cultivated by the tenant himself. The word " primarily " in the definition of a raiyat in s. 5, sub-s. 1, indicated that the definition was not an exclusive definition; it was possible for a person to be a tenure-holder although a part of the land was intended to be, and was, cultivated by himself. Here the land was cultivated by undertenants. They were, therefore, of opinion that the presumption had not been rebutted. They further said " On the other hand, there are indications in the lease itself that the grant could never have been intended to be a raiyati grant. In the first place, the grant was for the purpose of reclamation, and the grantee was expected to reclaim the land at his own expense. His position consequently would hardly be intended to be as precarious as that of a non-occupancy raiyat. In the second place, there was a period of remission fixed, during which no rent was to be paid on account of the land itself ; this is a term which usually finds place in leases of tenures. In the third place, the rate of rent itself was fixed in perpetuity and a premium was paid by the grantee to the grantor. Taken as a whole, the lease, in our opinion, makes it reasonably plain that the grant was intended to be that of a tenure.....

The view we take is supported by the observation of Lord Davey in the case of Gokul Mandar v. Pudmanund Singh.91 (1)

1917. Dec. 7. De Gruyther, K.C., and Sir William Garth, for the appellant. The appellant is a raiyat and not a tenure-holder. The test is the primary purpose for which the right of tenancy was originally acquired Bengal Tenancy Act, 1885, s. 5, sub-ss. 1, 4 ; Durga Prosunno Ghose v. Kali Das Dutt (( 1881) 9 Cal. L. R. 449.); Laidley v. Gour Gobind Sarkar. (( 1885) I. L. R. 11 C. 501.) Here the primary purpose was cultivation by hired labour, although the lease allowed the tenant to cultivate by raiyats or otherwise. It is unlikely that the tenant intended to become a tenure-holder, because in that case any person he put in would have been a raiyat with all the rights of raiyatwari occupation. The Board in Gokul Mandar v. Pudmanund Singh (( 1902) L. R. 29 I. A. 196.) merely gave effect to the presumption under s. 5, sub-s. 5, there being no indication that the purpose was to acquire raiyat tenure. The respondent should have objected to the record of rights prepared under ss. 101, 102, and 105, by which the tenants status was recorded as that of a raiyat. Not having done so this suit was not competent.

[Lord Buckmaster. The last contention was not raised in the Courts below, nor is it raised by the appellants case ; it is therefore not open.]

Sir Erle Richards, K.C., and 0Go