Chitty, J.:— This appeal by Raja Promoda Nath Roy, Defendant No. 1, arises out of a suit brought by the Plaintiff, Asiruddin Mandal, for a declaration that the entry as regards the Plaintiff's status in the record-of-rights, describing him as a tenure-holder, is erroneous, and praying that the Plaintiff be declared to be an occupancy raiyat. The Secretary of State for India in Council, Defendant No. 1, supports Defendant No. 2, the ijaradar under Government, in his contentions. The other Defendants have not appeared. The Subordinate Judge of Pabna and Bogra has decided in the Plaintiff's favour. Hence this appeal.

Two points arise for our determination (1) whether the suit is barred by limitation and (2) whether Plaintiff is in fact an occupancy raiyat. The first question depends on whether the suit falls within the class of suits indicated by sec. 104H of the Bengal Tenancy Act. If it must be regarded as brought under that section, it is admittedly out of time having been instituted more than six months after the certificate of final publication of the record-of-rights. On a careful consideration of the nature and scope of the suit and a perusal of the sections in Chap. X of the Bengal Tenancy Act, I am clearly of opinion that this is not a suit within the purview of sec. 104H, A suit to be brought under that section must have reference to an entry of a rent settled in a Settlement Rent Roll or to the omission to settle such an entry. The Plaintiffs suit is not of that nature. He makes no complaint as to the rent settled nor as to the entry in the Settlement Rent Roll. His complaint is that being an occupancy raiyat he has been wrongly described as a tenure-holder in the record of-rights [see sec. 102(b)]. The Settlement Rent Roll need only show the name of each landlord and of each tenant, and the amount of each tenant's rent payable for the area shewn against his name [sec. 104A(2)]. His status would not necessarily appear there. It is true that the question of status might come into a suit under sec. 104H; (see cl. (3)(e) of that section) but that is not the case here. This suit clearly falls within the category of suits alluded to in sec. 111A, a suit for declaration of a right under Chap. VI of the Specific Relief Act, 1877. The period of limitation for such a suit would be six years, and this suit is therefore within time.

The second question whether the Plain-tiff is an occupancy raiyat is one of fact and must be determined on a consideration of the evidence in the case. The Plaintiff admits to being in occupation of 1,815 bighas: the presumption is therefore that he is a tenure-holder see Bengal Tenancy Act, sec. 5(5). This presumption, however, is liable to be, and I think that in this case it has been, rebutted. We have in this case evidence of the origin of the holding., On 29th Aughran 1220 (12th December 1813), a potta was granted of 235 bighas (210 of newly formed lands and 25 for making homesteads) to seven persons of whom Nadi Mandal, the great uncle of the Plaintiff, was one. That potta clearly shows that the grant was for individual cultivation, and the amount leased to each, about 30, would be in accordance with that intention.

Nadi Mandal and his successors have by purchases or grants of additional lands acquired the whole of the original holding with additions. Thus we find Nadi Mandal with others getting 250 bighas for cultivation on 1st Chaitra 1228 (13th March r822), (see Ex. 4). Next we have a letter (Ex. 3), dated nth Aswin 1234 (26th September 1827), showing that a potta and roka in respect of 685 bighas had been granted to Nandi Mandal. On 29th March 1875, the Collector of Pabna drew up a Rubakari, in para. 5 of which he stated that of 676 tenants in the mehal it appeared from enquiries and investigation, that 636 have been in possession for more than 12 years and had acquired occupancy rights (Ex. 1). Among those 636 the name of Basiruddin Mandal appears as holding 4 jotes. There do not appear to have been any tenure-holders in this mehal at that time.

In 1878 and again in 1883 the ijaradar served Basiruddin Mandal with a notice for enhancement of rent in respect of jote No. 165 under sec. 14 of Act VIII of 1869, see (Exs. 11 and 12). In the settlement papers of 1885 Basiruddin's jotes were converted into three but be was still described as a raiyat.

It was not until 1905, when his jotes were converted into two, that he was for the first time described as a tenure-holder. The oral evidence is not of much assistance in a case like the present, but such as it is, it is in favour of the Plaintiff. I think that the decision of the Subordinate Judge was correct, and that this appeal must be dismissed. Defendant No. 2 must pay the Plaintiff his costs of the appeal. The Secretary of State for India in Council will bear his own costs. This judgment will also govern R.A No. 598 of 1909, which arises out of a suit brought by the Plaintiff in relation to his other jote of 790 bighas, and depends upon the same facts. This appeal is also dismissed. The Appellant must pay the Plaintiff's costs of the appeal. The Secretary of Stays Council must bear his own costs.

N. Chatterjea, J.:— The Plaintiff-Respondent sued for a declaration that an entry in the record-of-rights as regards his status describing him as a tenure-holder is erroneous and for a declaration that he is an occupancy raiyat.

The Court below decreed the suit and the Defendant No. 2 has appealed.

The first question raised is whether the suit falls under sec. 104H of the Bengal Tenancy Act. If it is a suit under that section, it is barred not having been instituted within 6 months of the final publication of the record-of-rights.

Sec. 104H forms one of the sections of Part II of Chapter X of the Bengal Tenancy Act and Part II is headed as “settlement of rents, preparation of Settlement Kent Roll and disposal of objections in cases where a settlement of land revenue is being made or is about to be made,” and secs. 104 to 104F prescribes the procedure to be adopted for carrying out the same. Then comes sec. 104H which provides for suits in Civil Courts by persons aggrieved by an entry of a rent settled in a Settlement Rent Roll prepared under secs. 104A to 104F and incorporated in a record-of-rights finally published under sec. 103A or by an omission to settle a rent for entry in such Settlement Roll, and the period of limitation prescribed for such a suit is 6 months.

Sub-sec. (3) of that section lays down the grounds on which such a suit may be instituted. The suit, however, in order to come within the purview of sec. 104H must be one which relates to an entry of a rent settled in a Settlement Rent Roll or an omission to settle a rent. The present suit is not of that description. The Plaintiff does not complain of any ??? settled nor of any entry in the Settlement Rent Roll. It is, however, contended on behalf of the Defendant-Appellant that the suit comes under cl. (e) of sec. 104H(3), because under that clause a suit may be brought on the ground “that the tenant belongs to a class different from that to which he is shown in the record-of-rights as belonging.” But that is only one of the grounds upon which a person aggrieved by the entry of a Tent settled in the Settlement Roll can institute a suit. Where no question as to entry of a rent settled or an omission to settle rent is concerned, the suit does not come under Sec. 104H. It was contended, on behalf of the Appellant that in cases where, as in the present, the settlement of land revenue is being made, suits upon the ground, such as is mentioned in cl. (e), are intended to be speedily disposed of, and that the provisions of sec. 111A under which a declaratory suit can be brought within 6 years should not be held to apply to such suit. That contention would be correct, “if the suit has reference to an entry as regards rent. For instance, if a tenant complained of the rent settled on the ground that he is not a tenure-holder or an under-raiyat but is an occupancy raiyat and his rent had been settled on the basis of his being a tenure-holder or an under-raiyat as the case may be, the suit would come under sec. 104H and the 6 months' limitation provided by that section would apply. So the question of status mentioned in cl. (e) of sec. 104H(3) might be raised in a suit under that section, provided the question of rent depends upon the question of status. That the section has reference only to suits relating to an entry of rent is also indicated by sub-sec. (8) of that section which runs as follows:—Save as provided in this section no suit shall be brought in any Civil Court in respect of the settlement of any rent or the omission to settle any rent under secs. 104A to 104F.

In the present case the Plaintiff merely complains that he has been wrongly entered as a tenure-holder in the record-of-rights prepared under sec. 102 and wants a declaration that his status is not that of a tenure-holder, but is that of an occupancy raiyat. He claims to be in possession of such a right and the suit therefore comes under sec. 111 A, which may be brought within 6 years.

I accordingly hold that the suit does not come under sec. 104H and is not barred by limitation.

The next question is whether the Plaintiff is a tenure-holder or a raiyat with a right of occupancy. The area held by the Plaintiff is 1,815 bighas: so he must be presumed to be a tenure-holder until the contrary is shewn. The contrary however has been shown by the evidence in the present case.

The first lease is dated the 29th Sraban 1220. It was granted, in respect of 210 bighas of newly formed lands and 25 bighas of lands for making homesteads, by the ijaradar to 7 persons, one of whom was Nadi Mandal, the grand-uncle of the Plaintiff. The lessees were to enjoy the lands by remaining in possession of the lands and-homesteads by cultivating the lands and erecting houses. The next document, which is a letter, dated the 1st Chaitra 1228, from the zemindar to the ijaradar, states that the lands granted to the lessees were not sufficient for the necessities of them all and that they had applied for some more lands to cultivate and to hold on payment of rent and accordingly 250 bighas of land were grant to those persons for cultivation and ??? ijaradar was directed to give them possession by dividing the plots. So far as these lands are concerned, the leases clearly show that the lands were granted to the tenants for the purposes of their own cultivation and not for bringing the lands under cultivation by establishing tenants on them.

It appears that Nadi Mandal and his successors acquired the whole of the original holdings and also acquired other lands by purchase or grants and there were accretions also. As regards these other lands however the original leases, (if there were leases for all such lands) have not been produced. The letter, dated 11th Aswin 1234) from the zemindar to the ijaradar shows that Nadi Mandal had been granted 685 bighas by potta and roka and the ijaradar was directed to make a deduction of 3 cottas from each bigha of raiyati holding in fixing the rent. Front the Collector's Settlement Rubakari, dated 29th March 1875 it appears that 636 out of 676 tenants in the mehal having been in possession for more than 12 years had acquired occupancy rights and the Terij-jamabandi for 1876 show that Basiruddin (father of the Plaintiff) held 4 jotes. There is no mention in the Rubakari of there being any tenure-holder in the mehal. Basiruddin was served with notices of enhancement in 1878, and again in 1883 by the ijaradar under sec. 14 of Act VIII of 1869, B.C in respect of one of the jotes.

In the subsequent settlement papers of the year 1885, the jotes in the name of Basiruddin were converted into three but his status was described therein to be that of a raiyat. In the recent cadastral survey in 1903, the jotes were made into two jotes and the Plaintiff was described for the first time as a tenure-holder. He raised objections but his objections were overruled, and hence this suit.

It thus appears that the original jotes consisting of about 485 bighas of lands were originally acquired by the tenants for their own cultivation. These were newly formed chur lands.

It is true the greater portion of the lands have for some time been sublet to tenants on cash or produce rents but (hat would not, I think, alter the character of the tenancy. In the case of Purge, Prosunna Ghosh v. Kali Das Dut(1), Field, J., expressed the opinion that “the only test of the raiyati interest is to see in what condition the land was when the tenancy was created. If raiyats were already in possession of the land and the interest created was a right not to the actual physical possession of the land but to collect rents from those raiyats the interest is not a raiyati. If on the other hand the land was jungle or uncultivated or unoccupied and the tenant was let into actual physical possession of the land that would be a raiyati interest and the nature of the interest so created would not, according to a number of decisions of this Court, be altered by the subsequent subletting to under-tenants.” In Baidya Nath Mondal & Ors.…Plaintiffs, v. Sudharam Misri & Ors.…Defendants,(2), Ghosh and Pargiter JJ., held that if the original grant was raiyati, any subsequent subletting could not take away the true character of the tenancy.

The test laid down in Durga Prosunna Ghosh's case cited above, however, as pointed out in Midnapur Zemindary Co., Ld. v. Sham Lal Mitter, is not; exhaustive. A person may be a tenure-holder not only when he has a right to hold land for the purpose of collecting rents but also where he is let into possession of the land for the purpose of bringing it into cultivation by Establishing tenants on it. So the mere fact that uncultivated lands are let out would not necessarily show that the person with whom the lands are settled is a raiyat because uncultivated lands may be let out for establishing tenants on them. Sec. 5 of the Bengal Tenancy Act makes the point clear by describing a tenure-bolder as a person who has a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it and a raiyat as a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners.

It was however contended on behalf of the Appellant that not only the origin of the tenancy but also the subsequent conduct of the parties in regard to the land ought to be taken into consideration in deciding the nature of the tenancy and reliance is placed upon the case of Midnapur Zemindary Co., Ld. v. Sham Lal Milter.

I think the above rule applies to cases where the terms of the lease are ambiguous and the original purpose of the tenancy is not clear and I am supported in this view by a recent unreported case,* Second Appeal No. 2189 of 1908, decided on the 15th February 1911 by Mookerjee and Teunon, JJ., in which the learned Judges stated their opinion that the above rule was “too comprehensively formulated.” The terms of the lease in the case of Midnapur Zemindary Co. Ld. v. Sham Lal Milter show that the tenant was to cultivate the lands or cause them to be cultivated and the learned Judges (Brett and Sharfuddin, JJ.) in that case held that the terms of the lease “would not necessarily imply that the tenant was to bring the lands under cultivation himself or by members of his own family or by his own servants” and that “there was nothing in the terms of the lease to render it improbable that the intention was that the land should be brought under cultivation by establishing tenants on it.”

In one of the two unreported cases referred to in the judgment in that case, viz., Appeal from Appellate Decree No. 1576 of 1906, decided by Caspersz and Doss, JJ., the learned Judges observed as follows:—It is quite clear from the case of Mokes Jha v. Manbharan Mia(4) that when the terms of the lease are ambiguous the Court must see how, since the grant was made, the parties have chosen to deal with the land …. We think that the clause upon which the learned District Judge has based his conclusions is ambiguous and that being so the question must be solved by having recourse to evidence of the surrounding circumstances and the subsequent conduct of the parties in regard to the subject-matter of the lease.’ In the other unreported case, Appeal from Appellate Decree No. 1716 of 1906, decided by Brett, J., the learned judge observes as follows:—“The settlement appears to have been made with them of lands amounting to nearly 350 bighas in area and the object of the settlement was to enable them to bring the lands under cultivation either cultivating them themselves or by having them cultivated by persons as tenants.”

In the case of Mohesh Jha referred to above the lease gave leave to the lessee to cultivate the land and get the same cultivated, and it was pointed out that it was “at the best an ambiguous document, and what the Courts have to see is, how since the grant was made the parties have chosen to deal with the lands.” The learned Judges in that case observed “nothing has been shown to us to lead us to the conclusion that a person who may have originally acquired a large tract of land ostensibly With the object of cultivating it himself or by his servants or members of his family may not afterwards convert himself, so far as third parties are concerned, into a rent receiver and give those persons as against himself the right to remain upon the land without being liable to be ejected at his instance. We do not propose to lay down any principle in this case which may have the effect of binding the landlord who is not a party to this action but it seems to us that upon general principles and having regard to the provisions of the law there is no bar to the Plaintiff or his predecessor in title giving rise by his conduct to a right which would preclude him from maintaining the present action for ejectment as against the Defendant.” In that case the question of the tenant's status arose between the tenants and his sub-tenant and not between the zemindar and his tenant. As to whether a raiyat having sub-let the holding to under-raiyats for a long time converts himself into a tenure-holder so far as such sub-tenants are concerned so as to be precluded from ejecting the under-raiyats need not be considered, in this case, as no such question arises here, the only question raised being the status of the plaintiff as a tenant under, and in relation to, the zemindar.

I think that it is only in cases where the terms of the lease creating the tenancy are ambiguous or in cases where there is no written lease and it is not clear what the original purpose of tenancy was, that the Courts should look into the subsequent conduct and surrounding circumstances to determine the nature of the tenancy. Any other view may lead to anomalous results. For instance, a person may take land for his own cultivation and cultivate the land for some years and then sub-let it to tenants for a long period and on the expiry of such period resume cultivation himself. Would his status vary from time to time? or suppose such a person cultivates the land for 5 years and then transfers it to another who sub-lets the land say for 25 years, what would be the status of the tenant so far as the landlord is concerned? So long as the land is held by the original tenant lie must be considered to be a raiyat, but if the Court must look to subsequent conduct in such cases, the tenancy may be held to be tenure having regard to the fact that the land has been sub-let to sub-tenants for such a long period. Then, again, suppose the transferee after holding the land for 25 years transfers it to a third person who cultivates the land himself, what would be the status of such a person? Similarly a person may take land for the purpose of collecting rents or for establishing tenants on t, and subsequently acquire khas possession of the lands and cultivate the same himself, would he cease to be a tenure-holder and become a raiyat? Would the character of the tenancy vary according to the manner in which the land is held by the tenant for the time being? I think the character of the tenancy is determined at the time of the original grant and sec. 5, cl. 2 of the Bengal Tenancy Act which, in describing a raiyat says that raiyat means a person who has acquired a right to hold land for the purpose of cultivating it by himself, etc., shows that the acquisition of the right to hold the land for the purpose of cultivating it has reference to the inception of the tenancy. Of course there is nothing to prevent the landlord and tenant, notwithstanding the existence of an unambiguous lease, to alter the original nature of a tenancy by agreement and there possibly may be cases where subsequent conduct may be set up as evidence of such an agreement. But where no such agreement is set up and it is clearly proved that the land was originally acquired by the tenant for cultivating it himself or by hired servants or by members of his family the mere fact that it was subsequently let out to tenants cannot affect the character of the tenancy and I do not think the learned Judges in the case of Midnapur Zemindary Co., Ld. v. Sham Lal Mitter intended to lay down that in every case, even where the original purpose for which the land was acquired is clearly shown, the Court must look to the subsequent conduct or that a tenant who acquires land for his own cultivation and subsequently lets it out to under-raiyats would lose the raiyati right which he originally acquired and convert himself into a tenure-holder as between himself and his landlord.

The surrounding circumstances and the subsequent conduct should be taken into consideration for determining the original purpose of the tenancy where the same is no clear. Once however the original grant is clearly shown to be raiyati by a lease unambiguous in its terms or by other evidence where there is no written lease, the mere fact that the tenant subsequenly sub-let the land would not falter the character of the tenancy.

Tn the present case, with regard to the lands in respect of which there are leases clearly showing that the original purpose of the tenancy was the cultivation of the lands by the tenant himself there cannot be any question that the tenancy was a raiyati one and the subsequent sub-letting cannot affect the nature of the tenancy. As regards the remaining lands, however, it seems to me the determination of the nature of the tenancy is not free from difficulty. As already stated the letter, dated the nth Aswin 1234, from the zemindar to the iraradar recites that 685 bighas had been granted to Nandi Mandal by potta and roka. The potta and roka have not been produced, but in the letter the lands are referred to as raiyati. As for the rest of the lands there is no evidence to show whether there was any written lease. I think therefore that with respect to lands other than the 485 bighas dealt with above, the conduct of the parties and surrounding circumstances should be taken into consideration and the question decided upon the whole evidence. I would have been disposed to attach great importance to the fact that the lands have been sub-let since some time more specially having regard to the very large area of the land which cannot ordinarily be cultivated by a raiyat himself or by members of his family or by hired servants or with the aid of partners. But the jote have been recognized in successive settlement proceedings and in other ways to be raiyati, and under the cir cumstances of the case I think the Plaintiff should be held to be a raiyat and not a tenure-holder. The appeal is accordingly dismissed with costs as against the Defendant No. 2, the Defendant No. 1 to bear his own costs.

This judgment governs appeal from original decree No. 598 of 1909 the facts of which are similar.

Appeal dismissed.