Fletcher, J.:— This is an appeal by the Plaintiff against the decision of the Subordinate Judge of the first Court at Midnapore dismissing his suit. The Plaintiff brought his suit for a declaration that he was an occupancy-raiyat of certain land mentioned in the plaint. The land in question is situate within the limits of a Government khas mahal. At the trial the learned Subordinate Judge dismissed the suit on the ground that the Plaintiff had failed to prove that he had served notice on the Defendant No. 1, pursuant to the terms of sec. 80 of the Code of Civil Procedure. The other issues the learned Judge decided in favour of the Plaintiff. On this appeal coming on for hearing, in the first instance a remand was directed to the lower Court to try the issue as to whether or not notice under sec. 80 had been served on the Defendant No. 1. The learned Subordinate Judge has now certified to this Court that notice under sec. 80 was in fact served. This finding has not been challenged, nor could it be by the learned Senior Government Pleader. The Defendant No. 1 is therefore in the position of an Appellant in this appeal.
Two questions only have been presented to us for our decision, namely—(a) what is the status of the Plaintiff and (b) is the present a suit barred by limitation? The holding in question is of an extent of 208 bighas odd and therefore primâ facie the Plaintiff is a tenure-holder, not a raiyat. No document is in existence evidencing the terms on which the Plaintiff holds. But the Plaintiff called evidence which the learned Judge accepted to prove that the tenancy in its inception was granted to the predecessor of the Plaintiff for cultivating purposes. In particular the learned Judge relied on the evidence of the Plaintiff's witness No. 6, who is stated to be about 87 years of age. The learned Judge remarks that this witness gave his evidence “in so straightforward a manner that even if he had been the only witness on the point, still I could never have brought myself to disbelieve him.” The evidence for the Defendants seems to show that “all the tenants on the land are bhagchasis under the Plaintiff.” But bhagchasis are not necessarily tenants of the Plaintiff [Kader Mandul v. Ahad Ali Mollah(1)]. It also appears that the Plaintiff and his predecessors in former settlements were described as having the interest of raiyats. The Plaintiff has also granted rent-receipts describing the tenants under him as being under-raiyats.
I agree therefore with the learned Judge that the presumption created by sec. 103B of the Bengal Tenancy Act is rebutted.
The Plaintiff and his predecessors having held the land for far more than 12 yearn have a right of occupancy in the land.
The other question for our determination is whether the suit is barred by limitation. The record-of-rights was finally published on the 14th of Sentember 1908. The Plaintiff aopears to have preferred an appeal to the Revenue authorities against the entry on the record-of-rights affecting his status. This appeal was rejected by the Revenue authorities as being incompetent. The present suit was filed on the 29th of June 1909.
It has been argued by the learned Senior Government Pleader that the present suit is a suit brought in respect of the settlement of any rent or omission to settle any rent under secs. 104A to 104F of the Bengal Tenancy Act. The suit therefore not having been instituted within the time limited by sec. 104H of the Bengal Tenancy Act the same is barred.
On the other hand it is said that the present suit falls within the proviso to sec. 111A of the Act, which provides that any person who is dissatisfied with an entry in or omission from a record-of-rights which concerns a right of which he is in possession may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877.
In my opinion the present suit comes under the proviso to sec. 111A and not under sec. 104H. A similar view was expressed in a case [Promoda Nath Roy v. Asiruddin Mundal(2)]. The present appeal must therefore be allowed and in view of the order for dismissal made by the learned Judge in the Court below the Court should declare that the Plaintiff has the status of a raiyat with a right of occupancy in the land.
The Respondent to the present appeal must pay to the Appellant his costs of this appeal, and in the Court below. The cross-objections filed by the Respondent will be dismissed. We make no order as to the costs thereof.
Richardson, J.:— I agree.
Appeal allowed.