These four appeals arise out of proceedings styled suits in the Courts below, under sec. 106 of the Bengal Tenancy Act, as it stood before its amendment by Act III of 1898, B.C, the Appellant objecting to certain entries in a record-of-rights under Ch. X of the Act. The objection was that, whereas certain lands were recorded as kast kaimi or occupancy holdings of the tenant, they ought to be recorded as the zerait or private lands of the proprietor.
The Courts below have overruled the objection and allowed the record to remain unchanged; and the proprietor has preferred these appeals against the decision of the lower Appellate Court.
In two of these appeals, namely, Nos. 509 and 602 of 1899, the Court of Appeal below, agreeing with the first Court, has found that the Plaintiff has failed to prove that the lands were his zerait lands.
The only ground upon which the decision of the Court below in these two cases is challenged in second appeal is, that the learned Judge below is wrong in not using as evidence against the Respondents the admission contained in the kabuliyat executed by them on the 23rd of August 1888, that the land was zerait. The learned Judge below has given two reasons for not giving effect to this admission: first, because in his opinion the word zerait merely “means cultivation and there is nothing to shew whether by the word was meant indigo zerait or proprietor's zerait, and, secondly, because the lease was subsequent to the 2nd March, 1883 and therefore the letting of the land even as zerait malik, had there been such letting, would not under the provision of sec. 120(2), Bengal Tenancy Act, help the Plaintiff.”
It is contended for the Appellant that both these reasons are wrong, the first because the term zerait has a technical meaning assigned to it by the Bengal Tenancy Act, and the second because, apart from the provisions of sub-sec. (2) of sec. 120 the statement in the kabuliyat as an admission by the Defendant would be evidence against him even though the date of the admission was subsequent to the date mentioned in that section.
It is unnecessary for us to say anything with reference to the first reason, as in our opinion the second reason given by the learned Judge below is a valid one, for excluding from consideration the effect of the admission or statement in the lease of 1888, sub-sec. (2) of sec. 120 says:—“In determining whether any other “land” [that is, land not shewn to be the proprietor's private land in accordance with the provisions of the first sub-section] ought to be recorded as a proprietor's private land, the officer shall have regard to local custom, and 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 the land is not a proprietor's private land until the contrary is shewn.” The letting here contemplated does not exclude any letting to the party who may subsequently dispute the fact of the land being zerait, and that being so, we do not think that the mere fact of the land having been taken lease of as zerait by the Defendant would give to that fact any evidentiary value when the letting was not, as the section requires to make it evidence, before the 2nd day of March 1883.
Appeals Nos. 509 and 602 must therefore fail and be dismissed with costs.
With regard to the other two appeals, which relate to lands of Muksudpur and Deokali, the lower Appellate Court has not come to any finding as to whether the lands were zerait or not but dismissed the Appellant's objection on the ground that he being one of several joint landlords, could not according to the provisions of sec. 188 of the Bengal Tenancy Act raise the objection that gave rise to these proceedings. This view, it is contended by the Appellant, is erroneous in law. We are of opinion that this contention is right. sec. 188 of the Bengal Tenancy Act provides that “where two or more persons are joint landlords anything which the landlord is under this Act required or authorized to do must be done either by both or all these persons acting together, or by an agent authorized to act on behalf of both or all of them.” Now disputing an entry made in the course of a record-of-rights proceeding under sec. 106 of the Act does not, in our opinion, come within the meaning of the words “anything which the landlord is under this Act required or authorized to do” as used in sec. 188. It is true the objection is made under the provisions of the Act and it is true also that in the present case the objection was raised by one of the joint landlords, but the right to object to an entry is one that is given by sec. 106 not to landlords alone but to all parties concerned who may feel dissatisfied with any entry made and the Appellant, though a landlord, is objecting to the entry in this case, not by virtue of any specific provision applicable to landlords alone but in the exercise of the general right given to all parties concerned to dispute entries which affect their interests. That being so, we think the view taken by the lower Appellate Court that the Appellant is precluded by sec. 188 of the Bengal Tenancy Act from raising this objection is wrong in law and that the decision of the lower Appellate Court in these two cases (Appeals from Appellate Decrees Nos. 510 and 511) must be set aside and the cases sent back to that Court in order that they may be determined on the merits.
The costs will abide the result. The hearing fee in each case is assessed at two gold mohurs.
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