Mitter, J.:— This appeal is on behalf of the plaintiff, the Midnapore Zemindâri Co. Ltd., herein referred to as “the Company,” in a suit for declaration of certain rights in property. It has been dismissed by the learned Subordinate Judge of Nadia by his judgment and decree dated December 19, 1934.
To follow the points raised in the appeal a short history of the estate called Char Marichardiar, bearing touzi No. 1905 of the Rajshahi Collectorate, now touzi No. 3520 of the Nadia Collectorate (herein referred to as the “Char”) within which the lands in suit are situate, and the precise nature of the Company's claim have to be noticed.
In or about 1840, a vast island char was formed in the bed of the river Padma and became fit for occupation. Robert Watson & Co. (to be called “the Watsons”) who were in possession of some âsli lands in the neighbourhood came upon this char in 1841 and began to possess it. Adjoining riparian proprietors laid claim to different portions of this char either on the ground of reformation in situ or on the ground of accretion to their permanently-settled estates, but the Watsons successfully resisted their claims to a great extent, all the suits except one or two being dismissed. The Watsons fought all these suits on the defence that no portion of the said char was part of any permanently-settled estate or accretions thereto but was the Government's property being originally an island char formed in the bed of a large navigable river. From 1841 to 1869, however, they did not pay anything to the Government on account of their occupation.
In the sixties of the last century a Diârâ survey of this char was made, and in 1869 the Watsons took a settlement from the Government for a term of three years stipulating to pay a fixed amount to the latter. The document evidencing this settlement has not taken produced and we do not precisely know anything about the nature and terms of this settlement beyond the fact that it was for a term of three years. The Watsons held over from year to year till March 1883.
In 1882, the râiyats of the said char rose in revolt against them and petitioned the Government for realising rent from them directly. The Government acceded to their prayer and resolved to hold the estate under khâs management. The evidence establishes the fact that direct possession was taken by the Government from April, 1883. This fact is not only mentioned in a series of settlement reports beginning from 1888 (Ex. 13a-B 88) but is admitted in a petition of the Company (Ex. 28-B-166). A survey of the said char as also a jamâbandi (settlement of rent of the cultivating râiyats) was begun immediately after the Government took the estate under khâs management.
It appears from the record that the Watsons were in khâs possession of some portion of the char, and cultivated the same themselves, they being indigo planters. The rest was in the possession of cultivating tenants. When the râiyats of the said char petitioned the Government for khâs management the Watsons took steps to counteract that move. They submitted a memorial to the Local Government on December 26, 1882. An which they preferred two claims. They claimed proprietary rights to a good portion of the char and occupancy rights in the remainder, this last mentioned claim being founded upon their khâs cultivation. Their claim of proprietorship was founded upon adverse possession, their case being that a portion of the char was reformation in situ of Bobanund Diârâ, a estate which belonged to the Chaudhuries, whom they had kept out of possession for the statutory period. The Government in its resolution dated April 6, 1883, held that their claim to proprietary right was unfounded and acting upon the opinion of the Advocate-General, who had in the meantime been consulted, rejected their claim to jotedâri rights (occupancy rights). The Lieutenant-Governor, however, did not wish that their possession over such portions of the char as were in their khâs cultivation should be disturbed, but they were to be asked to pay rent to the Government at the rates current in the locality (Ex. 1-B75). In this resolution there are two passages—one at p. 79, 11, 26-32 and the other at p. 80, 11, 40-46—which indicate that the Government considered itself to have proprietary title in the char and that the Watsons were its tenants up to March, 1883, they being rent collectors, farmers of rent or ijârâdârs. This fact and the facts noticed in the next paragraph have an important bearing on the first question raised in the appeal, namely on the construction of the document Ex. 17(d) (B-62), the document by which the Watsons engaged with the Government for a term of 20 years from 1887.
The survey of the char and jamâbandi which was begun in or about the year 1883 was completed in 1885. With, a view to terminate disputes Government, however, in the end decided to offer another farming settlement to the Watsons for a period of twenty years on certain conditions. The essential condition which the Lieutenant-Governor laid down in 1884 was that the Watsons were to acknowledge Government's proprietary title. What I find is that thereafter the Watsons reduced to a great extent their original claim. Instead of claiming the whole of the area of 46,000 bighâs odd; partly in proprietary right and partly in occupancy right, they reduced their proprietary claim to a parcel, about 10,500 bighâs in area, which they claimed partly as reform-action in situ of mehâl Tamadia which they held in patni right under a private proprietor and partly as formation in situ of another village of theirs named Muluk-Chandpur. The Government, however, was prepared to admit by way of compromise their claim to about 6,309 bighâs, and proposed a lease with them for twenty years of the remaining 40,198 bighâs provided they formally recognisad Government's proprietary title to the same [Ex. 23(c)]—Letter of the Secretary to the Government of Bengal to the Secretary, Board of Revenue, dated December 26, 1885. B. 111. The Watsons agreed to this and the Settlement Deputy Collector was asked to demarcate the lands to which Government admitted the Watsons proprietary title and to deduct from the jamâbandi of 1885 the assets of the released portion of mehâl Tamadia and Muluk-Chandpur and of the lands to which the Government admitted the claim of another proprietor Rani Manmohini Debi. The Deputy Collector carried out these directions and made corrections necessitated by fluvial action. Making allowance for collection charges and the farmer's profits and remission to cultivators, which would have to be made for submergence or dilution of portions of their land, the Deputy Collector by his final report dated September 6, proposed a farming settlement with the Watsons for a period of twenty years from April 1, 1887, at an annual “rental” for Rs. 7,737 (Ex. 13-B 114). There was later on modification of the amount of the jamâ and the Watsons actually executed the kabuliyat on February 4, 1888 (Ex. 17-d-B 62) in favour of the Collector of Rajshahi on the term that the settlement was to be operative for twenty years commencing from April 1, 1887. In the very first clause of the kabuliyat they admitted that the lands formed part and parcel of the Government's Estate bearing touzi No. 1905 of the Rajshahi Colbctoratg. This was in accordance with the essential condition laid down by the Government in 1884, that they were formally to recognise the Government's proprietary title. In 1902, the Watsons transferred their rights under this settlement to Gregson. It is the case of the plaintiff Company that between 1887 and 1902 the Watsons purchased in execution of rent decrees many holdings of occupancy râiyats. These holdings the Watsons also transferred to Gregson who in his turn transferred whatever he had acquired to plaintiff Company, which also purchased in execution of rent decrees a few more occupancy holdings before 1907. The total area of occupancy holdings so purchased between 1887 and 1907 according to the plaintiff Company is 1,339-84 acres and this is the subject matter of the suit and appeal.
The settlement of 1887 based on Ex. 17(d) expired on March 31, 1907. A survey and jamâbandi were started by the Assistant Settlement Officer and during the preparation of the records yearly settlements were concluded with the Company. The papers prepared by the Assistant Settlement Officer were finally attested in July, 1907. As this survey and jamâbandi were not under Part II of Chap. X of the Bengal Tenancy Act there was no final publication of the record.
In the course of this survey and jamâbandi the Company set up their claim as occupancy râiyats to the aforesaid 1,339-84 areas of land. The proceedings of the Government officers will have to be examined in detail later on, but at this stage it is only necessary to state that the Commissioner of the division finally rejected their claim to occupancy right by his order dated January 26, 1912. The Company got a resettlement for fifteen years from April 1, 1910. The kabuliyat is Ex. 17(b), B. 69.
In 1913, a district settlement under Chap. X of the Bengal Tenancy Act was started in Rajshahi and in the finally published record-of-rights a portion of the said area—about seventy acres—was recorded as being in the possession of the Company as occupancy râiyats and the rest in its possession as non-occupancy râiyats with a note that it occupancy rights had been destroyed by reason of s. 22(3) of the Bengal Tenancy Act. Only some of the khatiyâns have been printed. The two types are Ex. 20(f) at C 275 and Ex. 20(h) at C 413. In the remarks at the foot of p. 414 the word “no” before the words “occupancy right” has been dropped in the print.
On the expiry of the last mentioned settlement for fifteen years another survey was started under Part II of Chap. X of the Bengal Tenancy Act. In the course of the preparation of the record-of-rights the Company again set up their claim to the aforesaid area of 1,339-84 acres as occupancy râiyats but that claim was wholly overruled. The holdings were not even recorded in the Company's possession as non occupancy râiyats as in the Rajshahi settlement, but they were treated as merged or destroyed and the whole of the said area was recorded directly under the Government, i.e, as khâs lands of the ijârâdâr [Ex. B(1), B 169 at B 184, 3rd paragraph; Ex. A(1), B 164 and Ex. 28-B 166 at 168].
This record was finally published on May 31, 1929.
The plaint was filed by the Company on November 26, 1929. In para. 1 of the plaint two important admissions have been made. The first is that Mahâl Char Marichardiar of touzi No. 3520 is a Government khâs mehâl and the second admission is that since 1887 the said khâs mehâl has been settled in ijârâ right to the Company and its predecessors-in-interest. These statements will have important bearing on the first question raised before us by the appellant counsel.
In para. 2 of the plaint, it is stated that the Company and its predecessors purchased occupancy holdings covering an area of 1,339-84 acres before 1907 and according to the law in force at the time of their said purchases they became owners of the same in occupancy right. This has obvious reference to cl. (3) of s. 22 of the Bengal Tenancy Act before its amendment by Bengal Act I of 1907. Some light is thrown on this paragraph of the plaint by the petition of Company filed before the Settlement Sub-Deputy Collector on July 3, 1928, shortly before the suit (Ex. 14-B 162). In this petition the Company draws a distinction between the purchases of occupancy holdings of râiyats before 1907 and after 1907; in the former case occupancy rights were being claimed, and in the latter no such claim was preferred but, on the other hand, it was expressly stated that the Company held those lands so purchased after 1907 in the right of intermediate tenure holders only. This position was adopted consciously because by the amending Act of 1907 the words “by purchase” or otherwise was added after the word “acquire” then occurring in s. 22(3) of the Bengal Tenancy Act.
I have dealt with this matter in some detail to show that the plaint proceeded upon the footing that the Company and its predecessors in title were ijârâdârs or farmers of rent, i.e, non-permanent tenure holders and not farmers of revenue as was contended for by the Company in the lower Court, a contention which has gathered additional vehemence before us.
In para. 2 of the plaint statements are made that the Company was recorded in the settlement of 1910 as in possession in jote (eccupancy) right of the said area and in the Rajshahi settlement operations its possession was similarly recorded. The last statement is far from the truth and the statements about The settlement of 1910 are only half truths.
Paragraph 3 states what was done in the last settlement, the records of which were finally published under Chap. X of the Bengal Tenancy Act on May 31, 1929. It is expressly stated in the said paragraph that the officers of the Government beginning from the Deputy Collector treated the said purchased jotes (holdings) as having merged in the ijârâ, that is the holdings were treated as non-existent and that by the said acts of the Government the Company's right, title and possession in respect of the said jotes have been jeopardised. This is the cause of action alleged.
In prayer (ka) the Company asks for a decree “for a proper declaration that it has got purchased jote right (occupancy right) and right of possession in the jotes (holdings) described in sch ka below”. Prayer a is the prayer for general relief. It is unnecessary to notice the other prayers except that in prayer gha a certain reservation was made by the Company.
It seems to me clear that the Company did not pray for its right of occupancy in the lands in suit, being only declared but it went further. It also prayed for its right of possession in the jotes (holdings) also, which were purchased by it and its predecessors between 1887 and 1907. These holdings had been treated as merged in the ijârâ in the last Survey and Settlement of 1929 and the case of the Company was this was also wrong. The Subordinate Judge, in my judgment, has misconceived the precise scope of the suit. With these observations and findings which will have the effect of disposing of a substantial part of the appeal I proceed to notice some of the material findings of the Subordinate Judge and to deal specifically with the points raised by the appellant's and respondent's advocate.
The Subordinate Judge has found:—
(i) that the 1339-1384 acres in suit are identical with the lands of the occupancy holdings of râiyats purchased by the Company and its predecessors between 1887 and 1907;
(ii) he has found—though the finding is not in its proper place and has been put within parenthesis—that these holdings were purchased in execution of rent decrees. (A-121 1-11-14);
(iii) that the occupancy rights were extinguished as soon as the holdings were so purchased;
(iv) that by Ex. F (B. 151) the Company in taking the fifteen years' settlement from April 1, 1910, had accepted that position, namely, that the occupancy rights had been extinguished;
(v) that the Government had at no time recognised its occupancy rights in the said lands;
(vi) that by reason of s. 22(3) of the Bengal Tenancy Act as it stood up to 1907, the holdings were not extinguished but only the occupancy rights had ceased;
(vii) that the suit was not barred by time; and
(viii) the suit regarded as a suit for declaration was not bad by reason of the non-joinder of the Company's tenants on the lands in suit.
He dismissed the suit notwithstanding finding No. vi apparently on the footing that in his view the only relief claimed in the suit was one for declaration of occupancy right.
The respondent's advocate attacks the last three findings, a portion of the first finding and says that there is no finding that the occupancy holdings had been purchased in execution of rent decrees. With regard to the first finding all he says is that a portion of the 1,339-84 acres which formed part of occupancy holdings of râiyats had no doubt been purchased before 1907 but that the evidence establishes the fact that the Company even after 1907 purchased some râiyati holdings and that these holdings are accordingly outside the suit. The appellant's advocate attacks the third, fourth, fifth and a part of the sixth findings. I do summarily reject the fourth finding as unsound, as, in my judgment, the Subordinate Judge has misread Ex. F(B-151) and has misconstrued its effect. The Company therein reserved its rights to agitate the question relating to its claim to occupancy right. The points which, therefore, require consideration are the following:—
(i) Whether the Company and its predecessors were farmers of revenue or farmers of rent under the settlement of 1887 [Ex. 17(d)]?
(ii) Did the Company and its predecessors purchase in execution of rent-decrees the occupancy holdings of râiyats and what is the extent of such purchases between 1887 and 1907?
(iii) Whether the right of occupancy and the occupancy holdings so purchased were extinguished as soon as those purchases were made?
(iv) Did the Company give up their occupancy rights, if it had any in the purchased lands?
(v) Did the Government recognise their rights?
(vi) Is the suit barred by time? and
(vii) Can any declaration of right be made in favour of the Company in the absence of its subordinate tenants, and if so what must be the nature of the declaration? I will take up these points seriatim.
(i) The first point depends primarily upon the construction of the document Ex. 17(d) (B. 62). The appellant's contention is that by that document a farming settlement of revenue was made for twenty years, i.e, the Watsons became farmers of revenue. It is further argued that a farmer of revenue has under the law no interest in the land farmed; he is not a proprietor within the meaning of s. 22(1) of the Bengal Tenancy Act. Section 22(3) of the said Act would not also apply as that deals with ijârâdârs or farmers of rent. It is further argued that s. 22 of the Bengal Tenancy Act being thus out of the way there is no law which prevented the Company and its predecessors from acquiring occupancy rights or which would divorce for the purpose of extinguishing the occupancy rights from the occupancy holdings purchased by them. There are thus many propositions involved which would require consideration if, and only if, it be held that the settlement of 1887 Ex. 17(d) was a farming settlement of revenue and not of rent. In my judgment by Ex. 17(d) a farming settlement of rent was concluded.
In the first clause it is stated that “Estate Marichadiar” bearing touzi No. 1905 on the Collector's Register maintained under the Land Registration Act (VII of 1876 B.C) was a Government estate and the neutral word jamâ is used there. In para. 2 the status of the grantee is mentioned as farmer. That may mean that he was either a farmer of revenue, or a farmer of rent. That paragraph has the effect of expressing that the settlement was not to be a râiyatwâri settlement and that is the governing intent. Paragraph 3, except for the Government demand being described as revenue, would be consistent with a farming settlement of rent, and by it some interest in land is given to the grantee. Paragraph 5 provides for the cancellation of the “lease” for non-payment of Government demand and gives the Government right to realise its dues by the procedure applicable to farmers under Bengal Act VII of 1880. The reference is obviously to s. 5(2) of the said Act which speaks of arrears of revenue. The next four clauses are clauses which would only be apposite if the relationship between the Government and the grantee was of landlord and tenant. But for the word “revenue” used in cl. 3 and the said reference to the Public Demands Recovery Act of 1880 all the terms of the document would indicate that a nonpermanent tenure, an ijârâ, was being created. I do not place much reliance on the use of the word “revenue”, for the State was also the proprietor, and its demand, though strictly rent, would be described, though it may in a loose way, in that fashion. Explanation (1) to s. 101 of the Bengal Tenancy Act which was added by Bengal Act V of 1894 supports this view. Clause 5, however, prevents an obstacle to the view that the settlement was an ijârâ settlement, but that is an apparent obstacle, for if the grantee was to be a farmer of revenue the provisions of Act VII of 1880 would have been attracted proprio vigore and there would have been no necessity for a contract. On the principle that parties are free by contract to regulate the procedure the said clause can be interpreted to mean that the Government contracted for a cheap and expeditious procedure for the realisation of its demand.
It can be said at most that Ex. 17(d) by reason of the use of the word “revenue” in cl. 3 and by reason of the reference to the Public Demands Act in cl. 5, is of ambiguous import. But in that case it would be legitimate to refer to the attendant circumstances which I have noticed in the earlier part of the judgment, and these point to the fact that the grantee was intended to be a tenant of the khâs mehâl estate with a liability to pay as rent Rs. 8,700 for a term of twenty years. As the settlement was not a râiyatwâri one (cl. 2), the grantee's position would be that of a tenure-holder with a term of twenty years, that is, a non-permanent tenure-holder, or to use the language of s. 22(3), of the Bengal Tenancy Act, as ijâradâr or farmer of rent. The Company in the very first paragraph of its plaint itself understood the matter in the same way, for the estate is there described as Government khâs mehâl and its own right as ijârâ right. In this view of Ex. 17(d) it is not necessary to define the position of a farmer of revenue. Under the Mahomedan regime no doubt he had no interest in land; his position was akin to the position of a mere collecting agent (Field on Land-holding and The Relation between Landlord and Tenant, p. 428, s. 227) but that is not the position certainly under the British administration. He has certainly an interest in land and he would be a lessee, if by the settlement with him the payment to be made to the Government be regarded as rent, or the proprietor of a temporary settled estate, if by the settlement what he has to pay to the Government is regarded as revenue (Field, Do., p. 227 foot-note). The word proprietor in sub-s. (1) of s. 22 of the Bengal Tenancy Act includes the proprietor of a temporarily-settled estate [see definition of proprietor in s. 3(2), Bengal Tenancy Act]. By the clear terms of s. 22(1) of the Bengal Tenancy Act even as it stood before the amendment of 1907 the Company's claim to occupancy rights in the holdings purchased in execution of rent decrees would not in that case be sustainable, and his advocate would then lose the supposed benefit of the argument based on the use of the word “acquire” simpliciter as it stood in the Act before 1907 without the attendant phrase “by purchase or otherwise”.
(ii) I have already pointed out that the learned Subordinate Judge found that the occupancy holdings had been purchased by the Company and its predecessors in execution of rent decrees. There is not much discussion on the point in the Subordinate Judge's judgment, it may be because it was not seriously pressed before him by the defendant. Though an issue was framed on the point, the plea taken in the written statement is vague to a degree. (Paragraph 7 of the written statement). Be that as it may, the evidence on the point is one sided. The sale certificates produced are in the ordinary form. They do not show that the sales were in execution of rent decrees under Chap. XIV of the Tenancy Act nor do they show that they were in execution of money decrees under the Code of Civil Procedure, but there are ample admissions on the part of the Government that they were rent sales, as also admissions that the total area of such purchases was 1,339-84 acres. In the settlement report of 1910 [Ex. 18(d) — B. 138] these facts are stated in para. 12 at p. 144, the significant words that these jotes which covered an area of 1,339-84 acres were the jotes of “defaulting tenants” being used. It was absolutely necessary for Mr. Ezekiel, the Collector, whose order is referred to in that paragraph, to be satisfied both about the area and the fact of purchase as alleged by the Company, before he could reverse the Assistant Settlement Officer and direct the same to be recorded in the possession of the Company in occupancy right. Similar statements are made in Ex. A-2 (B. 152); Ex. B (B-154) and in para. 13 of the settlement report of 1928 [Ex. B (1)-B. 169 at 183]. The area of 1,339.84 acres was the area of the holdings purchased after 1887 and before 1907 and did not include any holding purchased after 1907. The Subordinate Judge has accepted for the reasons stated by him in his judgment, and the findings on this point have not been challenged before us by the learned Senior Government Pleader, that the area pointed out by the Company to the Assistant Settlement Officer, Mr. Mahsud, as the area of the jotes purchased by it and its predecessors was 1,339-84 acres and the lands in suit have been identified with what was pointed out to that officer. The learned Senior Government Pleader, however, relying upon the statement made by the plaintiff's witness No. 10 in his cross-examination at page A-82, K 45 urges that the jotes purchased by the Company between 1908 and 1910 were also pointed out to Mr. Mahsud and therefore 1,339-84 acres in suit also include some holdings which had been purchased by the Company after 1907. The answer given by this witness has obviously been recorded following the question put by the cross-examining pleader. The matter, however, is not left in doubt. The survey began in January, 1906, with Mr. Nirode Rayi as the Assistant Settlement Officer. Mr. Mahsud succeeded him in November, 1906, and was in charge at least up to October, 1910, it appears from the order sheet of these proceedings, that all the sale certificates had been produced by the Company before Mr. Mahsud some time before September, 1907, and had been identified on the locality— partalled as the technical vernacular word is Order No. 52, dated September 17, 1907, Ex. E-B. 128). No sale certificates of dates later than 1907 could accordingly have been produced before that Officer. I, accordingly, hold that the jotes had been purchased by the Company and its predecessors in execution of rent decrees and the total area of these so purchased between 1887 and 1907 was 1,339-84 acres and they have been identified with lands in suit.
(iv) and (v). I have already found that the Company never abandoned its claim to these jotes or its claim to occupancy rights therein. Nor is the fact established that the Government recognised the Company's claim to hold them in occupancy right. In the settlement proceedings of 1910 Mr. Mahsud refused to recognise its claim as occupancy râiyat. Mr. Ezekiel, on appeal by the Company, directed Mr. Mahsud to recognise its claim and to record its possession in occupancy right. The record was accordingly prepared but when the proceedings were sent ter the Commissioner of the division for confirmation, because he was the authority to finally approve the, proposed settlement with the Company for another term of fifteen years, he at once raised an objection. Correspondence passed between him and the then Collector Hr. MacAlpin who had succeeded Mr. Ezekiel. Mr. MacAlpin, with whom, the Commissioner concurred, held that the claim of the Company to occupancy right was unfounded. [Ex. A(1)-B. 148; Ex. B-B154 and Ex. C.B 156]. The Company filed a petition (Ex. F-B. 151) in which it agreed to accept the settlement with a reservation to agitate their claim further and on the said petition an order was passed for correcting the record-of-rights accordingly. The fact that the entry “occupancy rights” in the record-of-rights against these lands was not actually expunged cannot affect the matter and the Company cannot take advantage of that omission. The record-of-rights was not prepared under Chap. X of the Bengal Tenancy Act. It did not require final publication or any publication and was not finally published. It was kept only as a finally attested paper. I, accordingly, answer the fifth point against the Company.
(vii found that under the Settlement of 1887 [Ex. 17(d) — 62] the Watsons became farmers of rent, i.e, ijârâdârs, and that if they became farmers of revenue their position would be that of proprietors of a temporarily-settled estate. In the last case cl. (1) of s. 22 of the Tenancy Act as it stood before 1907 would apply and the right of occupancy in the purchased holdings would be extinguished. As I have held that they were farmers of rent cl. (3) of s. 22 as it stood before 1907 would apply. That clause was as follows:—
A person holding land as an ijârâdâr or farmer of rents shall not, while 30 holding, acquire a right of occupancy in any land comprised in his ijârd or farm.
While the clause stood thus, a Division Bench of this Court in the year 1905 [Ramrup Mahto v. Manners] had held without giving any reason that the word “acquire” meant acquisition by the statutory method, that is, by occupation for twelve years, and excluded acquisition by purchase. The view expressed was that an ijârâdâr gets and regains even after the expiry of the ijârâ the occupancy right which was already an incident of the holding purchased by him while he was an ijârâdâr. In 1907, the legislature intervened and by the Amending Bengal Act I of 1907 the words by purchase or otherwise” were added after the word “acquire” The effect was to nullify that decision.
Ordinarily by an amendment the legislature must be taken to have intended a change in the law, but it does not necessarily follow that such is the intendment in every case. An amendment may also be intended to clarify matters. In the cases of Raghwbir Mahto v. Manners and Sheonandan Singh v. Ramhit Singh the last mentioned view of the amendment was taken by two Division Benches of this Court. The Patna High Court has followed the view expressed in Ramrup Mahto v. Manners in preference to the view expressed in the last mentioned cases: Morgan v. Ramjee Ram; Ram Dheyan Singh v. Bhulotan Singh. I prefer to follow the interpretation put upon the word “acquire” in Raghubir Mahto (supra) and Sheonandan Singh's cases (supra). The word “acquire” is a word wide enough to connote acquisition by purchase and by inheritance, and, in my judgment, the legislature had not indicated its intention in other parts of the statute as existing before 1907 to cut down the ordinary meaning of that word. The grammatical construction must be given effect to. Right of occupancy is also an incident of a holding and would pass by transfer, and but for cl. (3) of s. 22 would have vested in the ijârâdâr as an incident of the holding purchased by him.
The effect of cls. (1) and (2) of s. 22 was considered by a Bench of five Judges in 1896 and again by the Full Bench in 1905: Jawadul Huq v. Ram Das Saha and Ram Mphait Pal v. Sheikh Kachu. It was held in those cases that the right of occupancy only ceased but the holding remained in the hands of the co-proprietor who had purchased the same but divested of the occupancy right, that is to say, such a purchaser held as a non-occupancy râiyat. The law as laid down in the case of co-proprietors was changed by the amendment of 1907; but the words of sub-s. (3) which followed the words of sub-s. (2). before the said amendment was left unaltered. I hold accordingly following the reasons in Jawadul Huq's case (supra) and Ram Mohan Pal's case (supra) that on the purchase of an occupancy holding by an ijârâdâr before 1907 the occupancy right only ceased but the holding remained and he is entitled to hold the lands, as a separate entity, as a non-occupancy holding. This is the view expressed in Sheonandan Singh's case and with that view I agree. The Subordinate Judge has cited the cases reported in R. Watson and Co. v. Jogendronarain Roy; Mokoondy Lal Doobey v. Crowdy; Mukandi Lal Dubei v. Crowdy; and Thomas Savi v. Punchanun Roy. These can have no bearing on the case before us. They lay down the principle, which has been subsequently approved by the Judicial Committee [Jardine Skinner & Co. v. Surut Soondari Debi(8)], that the period of occupation during an ijârâ cannot be reckoned, where the ijârâdâr claims to have acquired occupancy rights under the statute— i.e, by continuous occupation for twelve years, or, as Sir Lawrence Jenkins C.J puts it in Jasimuddin Sheikh v. Beni Madhab Das(9), “during the currency of the ijârâ the active operation of the possession as a means of acquiring the right of occupancy was suspended or remained in abeyance”. My finding, therefore, is that the Company cannot claim occupancy rights in the lands in suit, but the holdings remain and in them it has non-occupancy rights, and unless its suit is barred by time or unless no declaration can or ought to be granted on the ground noticed in point No. (vii) it is entitled to have a declaration that it has non-occupancy rights in the same. I have already held that prayer (ka) of the plaint includes this relief, and if it does not the declaration in that form can be given in this suit under the prayer for general relief on the principles laid down in Hiern v. Mill and Cockerell v. Dickens.
(vi) Limitation. At one stage of the argument the respondent's advocate suggested that Art. 14 was applicable and the starting point at least was July 3, 1928, when the Settlement Deputy Collector on the direction of the Director of Land Records rejected the Company's claim to have the lands recorded as holdings in its possession as occupancy râiyats, but this position was abandoned when the attention of the Government Pleader was drawn to the scope of the suit and to the proviso to s. 111A of the Bengal Tenancy Act. Both sides thereafter proceeded upon, what is the correct view, that Art. 120 of the Sch. I of the Limitation Act was applicable and the controversy centered round the third column of the said article. Both sides relied upon the observations of Sir Binod Mitter in Bolo v. Koklan. The respondent's advocate argued that there was an infringement of the Company's right or at least an unequivocal threat to infringe it in the proceedings of 1910 and the suit is barred. On the point of law, the appellant's counsel's answer is that a fresh cause of action accrued to the appellant in 1929 or at least in 1928 when there was a fresh attack on its right in the last settlement proceedings. In my judgment, it is not necessary on the facts of this case, and on the form of the relief to which the Company is entitled, to decide the point, but in view of the fact that the matter may be carried higher up I would later of express my views on it.
I have already found that the holdings have not ceased to exist but only the occupancy right. In the settlement proceedings of 1910 the Government admitted that the Company held the lands in suit in non-occupancy right [Ex. B-B. 154 at 155 and Ex. B(1)-B. 169 at 183 1. 40]. In the Rajshahi settlement operations the greater portion of the lands was recorded in the Company's possession as non-occupancy râiyat and the rest as occupancy râiyat. Up to this stage the position was not taken by the Government that the holdings had also merged. Only in the last settlement proceedings of 1928-1929 the holdings were held as merged in the ijârâ. [Ex. B(1) at p. B-184 1. 25-35]. The first challenge to the Company's right to hold these lands as parts of holdings and in non-occupancy rights was in 1928 and the suit being filed within 6 years of that date is within time.
On the question of law indicated above my view is that a fresh attack or invasion gives rise to a new right to sue for declaration. If there be successive attacks at intervals, time would run from each of these attacks and if the last attack which is made the basis of the suit be within six years of the suit, the suit will be in time. I do not propose to base any view on the theory of a continuing right, which was one of the grounds on which this Court based its decision in Chukkun Lal Roy v. Lolit Mohan Roy, a view which has later on been criticised in this Court [See Mohabharat Shaha v. Abdul Hamid Khan] and in the Madras High Court [Ponnu Nadar v. Kumaru Reddiar]. I cannot, however, agree with me view expressed the Madras case that time would run from the first attack or invasion. That would introduce an important word in the third column of Art. 120. When the plaintiff remains in possession, though frequent and successive threats and attacks on his title are made by the defendant, his title is not extinguished and so long as his title subsists he has the right to sue for declaration and his suit would be considered to be within time if he makes a threat or attack made within six years of the suit the foundation of his suit. The view I am taking has been taken in a series of cases decided by this Court, the Patna, the Bombay and the Allahabad High Courts and most of them are collected at the footnote to p. 1450 of U.N Mitra's Law of Limitation, Vol. II, 6th Ed.
There remains the last contention made by the Senior Government Pleader. A Court may refuse in its discretion a declaration of right if all necessary parties are not before it, but I do not consider that the sub-tenants of the Company are necessary parties. They have not denied the Company's right. None of these sub-tenants laid any claim inconsistent with the Company's claim, but the Assistant Settlement Officer on instructions received from the Director of Land Records treated the holdings as merged in the ijârâ (Defence witness No. 3. A 88 at the top of 93). There is evidence that these sub-tenants are without protest receiving rent receipts from the Company describing them as korfâ (under-râiyats) under an agreement referred to by plaintiff's witness No. 10 at the top of his deposition at p. 75. Apart from these facts the Company has sued under the proviso to s. 111-A of the Bengal Tenancy Act for a declaration by reason of there being the omission from the records-of-rights of the holdings in its possession in râiyati right. To such a suit the sub-tenants are not necessary parties. If any other view be taken, the tenants, thousands in number, of a whole mahâl which may consist of hundreds of mouzâs with thousands of tenants would have to be made parties if the whole mehâl were let to a tenure-holder, whose status had been, according to him, wrongly recorded by the Settlement Officer.
I, accordingly, hold that the sub-tenants are not necessary parties and the Company is entitled to a declaration that the lands in suit comprise holdings held by it in non-occupancy right.
The result is that the appeal is allowed to this extent. As the plaintiff appellant has not been able to maintain its claim of occupancy right, it should have half of the costs of the lower Court and half of the costs of this Court, with the exception of the paper book costs. As a mass of unnecessary papers has been included by the appellant in the paper-book the appellant Company is to get only a fourth of the paper book costs. We assess the hearing fee at Rs. 375 in this appeal, which amount the appellant is to get from the respondent.
Sen, J.:— This is an appeal by the Midnapore Zemindâri Company against the judgment and decree of the Additional Subordinate Judge of District Nadia whereby the appellant's suit has been dismissed.
Shorn of the superfluities and irrelevancies which seem to have crept into and encumbered the trial, the plaintiff's case falls within a fairly narrow compass. Mehâl Char Marichardiar which formerly bore touzi No. 190 of the Rajshahi Rent Roll and which now bears touzi No. 3520 of the Nadia Collectorate is a Government khâs mehâl. In the year 1887, the Government granted what the plaintiff describes as a “farming settlement” of this khâs mehâl to Messrs Robert Watson and Company, Ltd., the predecessor in interest of the plaintiff Company. This settlement was for a period of twenty years commencing from the Bengali year 1294 B.S corresponding to the years 1887-1888 A.D The kabuliyat embodying the terms of this settlement is Ex. 17(d) (vide p. 62 of Part II, Vol. I of the paper book). On November 29, 1902, Robert Watson and Co. Ltd. sold its interest in the above settlement together with other properties to C.B Gregson by a registered deed of conveyance [Ex. 9(a)], a copy of which is printed at pp. 1-5 of Part II, Vol. II of the paper-book. Some properties were inadvertently left out in the deed of conveyance and this necessitated the execution of a deed of rectification (Ex. 9) on March 4, 1904, whereby these properties were included in the transfer. On December 3, 1906, C.B Gregson sold his interest in the farming settlement together with other properties to the plaintiff Company, the deed of conveyance being Ex. 9(b) A copy of this deed is printed at p. 120 of Part II of Vol. II of the paper-book. In this way the plaintiff Company acquired the farming rights granted in the year 1887 to Robert Watson and Co. Ltd. According to the plaintiff this settlement conferred upon the grantee the right to institute suits for rent against the tenants on the land. Between the years 1887 to 1906 the grantees of this settlement brought rent suits against the tenants on the land and obtained rent decrees. In execution of these decrees the grantees purchased certain occupancy holding which measured 1,339.84 acres and which are described in Sch. (ka) of the plaint. In the temporary settlement of 1910, the occupancy right of the plaintiff in these tenancies were recorded. In the years 1914 and 1915 there were diârâ settlement proceedings in Rajshahi and the plaintiff's occupancy right in these holdings were again recorded. After this there was a survey settlement under Chap. X of the Bengal Tenancy Act and the records of this settlement were finally published on May 31, 1929. In these records the occupancy right of the plaintiff Company in the holdings in suit were ignored and the lands were recorded as being in possession of certain other persons as tenants under the Government khâs mehâl. The plaintiff Company during the settlement proceedings made various representations to the settlement authorities asserting its occupancy right in these holdings but its claims were negatived and the records were finally published as stated above. On these allegations the plaintiff instituted this suit praying for a declaration that it had acquired occupancy right in the properties of Sch. (ka) by purchase before the year 1907 and for a declaration that the record of rights is incorrect. There was also a prayer for a declaration that the plaintiff Company had the “right of possession” in these lands.
The defendant, the Secretary of State for India in Council, filed a written statement which is remarkable for its reticence and lack of information about the facts on which the defence relies. It is asserted that the suit is barred by reason of the provisions of s. 104H of the Bengal Tenancy Act and the general and the special law of limitation. Next the defendant states that the claim is barred by waiver, estoppel and acquiescence. The plaintiff Company's purchase of the holdings in suit and its possession thereof is not admitted and the plaintiff is put to proof thereof. The defendant denies that the plaintiff was ever recorded or recognised as occupancy râiyat of the lands in suit.
Next the defendant pointed out that the plaintiff had accepted the “ijârâ” settlement from Government after its claim to occupancy right in the land of the “ijârâ” had been rejected by the Government and contended that the plaintiff could not in these circumstances claim occupancy right in any land comprised in the settlement. Lastly, the defendant took the point that the plaintiff being in possession of the lands of touzi as ijârâdâr since 1869 it could not under the law acquire occupancy right in any part of the lands of the ijârâ settlement during the subsistence of the ijârâ settlement.
The plaintiff's suit has been dismissed by the learned Subordinate Judge on findings which may be summarised as follows: The learned Subordinate Judge holds that the suit was not barred either by the provisions of s. 104H of the Bengal Tenancy Act or by the law of limitation, general or special. He finds in favour of the plaintiff regarding the fact of acquisition of the land in suit. He decides that the predecessors-in-interest of the plaintiff acquired 1,389;94 acres of land as specified in schedule (ka) of the plaint by purchases at sales in execution of rent decrees. He is of opinion, however, that by these purchases the predecessors-in-interest of the plaintiff could not acquire occupancy right in the holdings for reasons which will have to be dealt with in detail later as they constitute the main points of controversy in this appeal. In considering the question whether the suit is maintainable the learned Subordinate Judge has come to a two-fold conclusion. First, he says that there, is nothing to show that the claim for a declaration of the plaintiff's occupancy right is not maintainable, then he goes on to observe that in the absence of the persons who have been recorded in the finally published record-of-rights as occupancy râiyats, settled râiyats and under-râiyats the plaintiff cannot be heard to claim that the record-of-rights should be corrected by having itself recorded as occupancy râiyat in their places. On these findings he has dismissed the plaintiff's suit with costs. The plaintiff Company has now appealed to this Court.
I think that it will be better for me to state first the admitted facts and my findings on the disputed facts and then to consider the legal consequences which will follow from these facts. That Robert Watson and Co. Ltd. took a settlement from Government for a term of 20 years from the year 1887 with respect to Mehâl Char Marichardiar now bearing touzi No. 3520 of the Nadia Collectorate is admitted. That the settlement was in terms of the kabuliyat Ex. 17(d) is also admitted. That the land described in Schedule (ka) to the plaint forms part of this mehâl is not in controversy. There is no dispute regarding the facts that Robert Watson and Co. Ltd. sold all its interests in the mehâl together with other properties to C.B Gregson and that C.B Gregson sold all his interests therein to the plaintiff Company.
The parties are at variance on the question whether the plaintiff Company or its predecessors-in-interest had purchased all the properties mentioned in schedule (ka) of the plaint; whether, if they were so purchased, the purchases were made in execution of rent decrees and whether all these purchases were made prior to 1907.
The learned Subordinate Judge expresses his finding on this point thus:— “I hold therefore that the plaintiff auction-purchased the suit lands in execution of rent decrees against tenants”. On behalf of the respondents it is argued that this finding is erroneous and that it does not dispose of the question whether the purchases were made before 1907. The importance of the question whether these purchases were made before 1907 arises in this way. Section 22 of the Bengal Tenancy Act which imposes certain limitation upon the acquisition of occupancy right by an ijârâdâr or farmer of rents in any of the lands comprised in his ijârâ or farm was amended in 1907. The contention of the respondent is that the plaintiff's competency to acquire occupancy right in the land in suit will be governed and restricted by s. 22 of the Bengal Tenancy Act. The appellants urge that this section has no effect at all so far as the appellant's rights in this connection are concerned and that even if it be held that the appellant's right will be governed by this section, s. 22 as it stood before the amendment of 1907 would apply. This question will be considered in detail later on. I mention these matters at this stage merely to indicate the significance, of the plaintiff's claim that the lands have all been acquired before 1907.
In my opinion, the appellant has succeeded in establishing not only that all the lands in suit were purchased at sales in execution of rent decrees against occupancy râiyiats but also that they were purchased before 1907. In this connection the pleadings of the parties should be looked into.
The plaintiff in para. 2 of his plaint stated that the predecessors-in-interest of the plaintiff Company, during the period 1887 to 1906 purchased the lands in suit in execution of decrees for rent and it is stated that by virtue of such purchase the plaintiff acquired occupancy right in the lands. Paragraphs 7 and 8 of the written statement deal with this part of the plaintiff's case. The defendant in these two paragraphs put the plaintiff to proof of two facts only, viz.:— (a) that the plaintiff had purchased the lands in suit and (b) that it had been in possession of the lands since their alleged purchase. There is no denial of the assertion that the purchases were made between 1887 and 1907, nor is there any denial of the assertion that the purchases were made at sales in execution of rent decrees. The only issues on the points were framed as follows:— “Is the story of the plaintiff's purchase of tenants' jotes in execution of “rent true? Has the plaintiff purchased the land in suit?” “Is the story of the plaintiff's possession of the suit lands in their jote rights since their purchase of those jotes true”? In dealing with these issues the learned Subordinate Judge says:—
These issues relate to the identity of the plaint lands and to the plaintiff's possession of those lands. It has been urged on behalf of the defendant Government that as the plaintiffs have not given the last settlement khatiyan numbers in the plaint, and as it has not been shown that the lands sold by the sale certificates produced by the plaintiffs (Ex. 7 series) are identical with the plaint lands and as the sale certificates show an area of about 900 acres only, the plaintiffs cannot get a decree in respect of “1,339-84 acres”.
From the pleadings, the issues and the arguments before the Court below it is quite clear that the defendant was merely putting the plaintiff to proof of the fact of acquisition of the lands in suit. The defendant did not really challenge the assertion that the acquisition was made between 1887 and 1907 or the assertion that the acquisition was made by purchase at sales in execution of rent decrees. All that the defendant wanted the plaintiff to prove was that the plots mentioned in Sch. (ka) to the plaint were the plots which it had acquired by purchase. I am confirmed in my view that this was so by another passage in the judgment of the learned Subordinate Judge which is at p. 121 of Part I of the paper-book. The passage runs thus:—
Admittedly the plaintiff auction-purchased the occupancy holdings covering 1,339-84 acres of lands during 1888 to 1906 during the continuance of the said lease.
In these circumstances the complaint that the learned Subordinate Judge did not deal with the question whether or not the lands in suit were purchased before 1907 appears to me to be without any foundation. The evidence shows that when the settlement operations of Marichardiar commenced in 1906 the plaintiff Company asserted that it had acquired occupancy right in 1,339-84 acres of land by purchase at rent sales. At first the settlement officer refused to record this right on the ground that s. 22(3) of the Bengal Tenancy Act prevented the acquisition of such right by an ijârâdâr, by purchase or otherwise. The Company contested the correctness of this interpretation of the land and the then Collector Mr. Ezekiel after consulting the Government pleader held that s. 22(3) of the Bengal Tenancy Act as it stood before the amendment of 1907 did not prevent an ijârâdâr from acquiring by purchase occupancy right in the land comprised in the ijârâ, and directed that the Company be recorded as occupancy râiyat with respect to these 1,339.84 acres of land on the footing that the Company had acquired these lands by purchase in execution of rent decrees. This will appear from order No. 52 dated September 17, 1907 passed by the Assistant Settlement Officer S.A Mahsud in his order sheet, Ex. E, printed at pp. 125-135 of Part II, Vol. I of the paper-book and from the report of the said officer which is Ex. 12(d) (vide p. 144 of paper book Part II, Volume I). These two documents clearly show that a claim was made by the Company that it had acquired occupancy right in 1,339-84 acres of land comprised in the settlement made with it and that this right was acquired by purchase at rent sales prior to 1907. The Government did not contest the fact of the acquisition or its method but it declared at first that this acquisition did not confer a right of occupancy on the purchaser by reason of the prohibition contained in s. 22(3) of the Bengal Tenancy Act. There was a change of view and the Collector Mr. Ezekiel directed that the occupancy right of the plaintiff Company in this area should be Recorded and this was done. The matter then went up before the Commissioner in 1910; in the meantime Mr. MacAlpin succeeded Mr. Ezekiel as Collector. Mr. MacAlpin's view was that s. 22(3) of the Bengal Tenancy Act prohibited the acquisition by purchase or otherwise of occupancy rights by an ijârâdâr in lands comprised within the ijârâ and he passed an order that the Company should be recorded as a non-occupancy râiyat with respect to this land. The order is Ex. B (p. 154, Part II, Vol. I of the paper-book). There also the position was accepted that these lands were purchased before the amendment of the Bengal Tenancy Act in 1907 for arrears of rent in execution of rent decrees against occupancy râiyats. This order was upheld by an order of the Commissioner passed on January 26, 1912, which is exhibit C (p. 156 ibid). This order makes it clear that the Company made the very claim it is now making with respect to the purchase of 1,339-84 acres of land at rent sales in execution of rent decree prior to 1907. It also makes it clear that the Government did not challenge these facts but that it disallowed the plaintiff's claim on the ground that s. 22(3) prevented the plaintiff from acquiring occupancy right in the land it had purchased. Together with these facts must be considered the evidence of plaintiff's witness No. 10 Jogendra Nath Biswas who identifies the land in suit as being the 1,339-84 acres purchased prior to 1907. Against this there is virtually no rebutting evidence. All that the respondent points out is that the sale certificates produced do not cover the entire area Jogendra Nath Biswas has explained that some of the sale certificates are lost. In these circumstances, I have no hesitation in concurring with the learned Subordinate Judge's finding that the plaintiff Company purchased the lands in suit at rent sales in execution of rent decrees against occupancy râiyats and in holding that these purchases are made before 1907 and during the continuance of the “farming settlement”, i.e, during the years 1887 to 1906.
The next and indeed the most important question for determination is whether the predecessors-in-interest of the plaintiff Company acquired occupancy right in the lands so purchased by them during the above-mentioned period. The plaintiff Company's contention is that the kabuliyat Ex. 17(d) of 1887 is not a lease creating the relationship of landlord and tenant, that it is a farming settlement of revenue and not of rent and that therefore the Bengal Tenancy Act would not govern the relationship created by this arrangement between the Government and the predecessors-in-interest of the plaintiff. On these grounds, it was argued that s. 22(3) of the Bengal Tenancy Act which restricted the acquisition of the right of occupancy by an ijârâdâr in the land of his ijârâ would not apply. The next branch of the argument is that even if this section applied it would not have the effect of restricting the powers of the ijârâdârs or farmers of acquiring occupancy right by purchase at rent sales, as the word “acquire” in s. 22(3) of the Bengal Tenancy Act as it stood before the amendment of 1907 had a narrow and technical meaning which did not include acquisition by purchase. The contention of the defendant is that the farming settlement was nothing more or less than a farming of rent and that thereby the grantee became an ijârâdâr or farmer of rent within the meaning of s. 22(3) of the Bengal Tenancy Act; that this sub-section has imposed a disability upon a person holding this position from acquiring by any means whatsoever a right of occupancy in the land of the ijârâ, and that therefore the plaintiff Company's claim in this respect must fail. It is clear therefore that in order to dispose of the question whether the plaintiff has acquired occupancy right in the land in suit, the true import or effect of the kabuliyat Ex. 17(d) has to be determined first.
I have no hesitation in coming to the conclusion that this kabuliyat is a lease whereby the plaintiff's predecessors were constituted farmers of rent or non-permanent tenure-holders and that the relationship between Government and them was that of landlord and tenant, a relationship governed by the provisions of the Bengal Tenancy Act. A pertinent question which naturally forces itself upon one's attention in this connection is this: What was the position of Government with respect to Char Marichardiar which was being farmed out by this kabuliyat Ex. 17(d)? The answer is to be found in the pleadings of the plaintiff Company and in the documents which the plaintiff Company has put in evidence. In para. 1 of the plaint the plaintiff says that Mehâl Char Marichardiar of touzi 3520 of the Collectorate of Nadia is a Government khâs mehâl. That the plaintiff recognised that the Government is the proprietor of this mehâl appears not only from the plaint but also from Ex. 23(c) a letter dated December 26, 1885, from A.P MacDonnel, Esq., Secretary to the Government of Bengal, to the Secretary to the Board of Revenue (vide page 111 of Part II, Vol. I of the paper-book). There the Secretary states that Messrs Watson and Co. Ltd. agreed to acknowledge the proprietary right of Government in this mehâl and that on this footing a farming lease for 20 years was recommended to be granted to them of Char Marichardiar. I would also refer to Ex. 28 (p. 166 of Part II, Vol. I of the paper-book) which is a memorandum of appeal filed by the plaintiff Company in 1928. In paragraph 2 of this petition is an admission that the Government were recognised as proprietors of this char by Messrs Robert Watson and Co. Ltd. It is unnecessary to multiply the evidence. It is well established that the property let out in farm to the plaintiff Company is a khâs mehâl and that the Government's proprietary right in the property was recognised by the plaintiff Company. A khâs mehâl is an estate held by Government standing in “the place of the proprietor [vide Fields “Regulation of the Bengal Code (1875)”, p. 41]. khâs mehâls are estates under the Bengal Tenancy Act of 1885 and the Government is the proprietor owning such estates. The Government is also a landlord like other land-holders (vide s. 3, sub-ss. (1), (2) and (4) of the Bengal Tenancy Act, 1885, and Mitra's Land Laws of Bengal, 2nd Ed., p. 32). The Government being a proprietor or land-holder with respect to Char Marichardiar, the settlement of the estate with Robert Watson and Co. Ltd. 1887 in terms of the kabuliyat Ex. 17(d) could amount to nothing but a farming lease of rent in which the Government was the landlord and Robert Watson and Company, Ltd. the tenant. The plaintiff relies upon the fact that the word revenue and not rent is used to indicate the payment to be made by Robert Watson and Co. Ltd. to Government under the terms of the settlement and upon the stipulation that the dues would be realised in case of default according to the provisions of Bengal Act VII of 1880 which normally provides the machinery for the collection of revenue. In my opinion, the use of the word “revenue” does not necessarily signify that the relationship of landlord and tenant was not being established by this settlement. In this connection I can do no better than quote a passage at p. 52 of the 2nd Ed. of Mitra's Land Laws of Bengal, Bihar and Orissa which runs as follows:—
The settlement of land revenue in temporarily-settled estates and khâs mehâls takes place periodically. The Government is a landlord within the meaning of the word as used in the Bengal Tenancy Act, and though the amount payable directly to Government in the khâs mehâls is rent, the para mount title of the State carrying with it the right to receive revenue and the proprietary right to receive rent uniting in the Government the proprietary interest merges in the paramount title, and rent in such cases is called revenue.
The word “revenue” has been used loosely in this kabuliyat as being synonymous with the word rent. The provision regarding the use of the machinery of the Public Demands Recovery Act (Bengal VII of 1880) for realising arrears from the grantee of the settlement does not in my opinion indicate that a settlement of revenue was being made. If this was a settlement of revenue the Public Demands Recovery Act would come into operation automatically and there would be no need to stipulate in the deed, that its provisions would be applied. The introduction of this clause may be taken to indicate that the settlement constituted a farming of rent and not of revenue. I hold that the arrangement of 1887, the terms of which are embodied in the kabuliyat Ex. 17(d), constitute a farming lease whereby the Messrs Robert Watson and Co. Ltd., became ijârâdârs or farmers of rent, in other words they became non-permanent tenure-holders. In this connection, I would mention that the standpoint, viz., that s. 22(3) of the Bengal Tenancy Act would not apply because the settlement of 1887 was a farming of revenue and not of rent was not taken till a very late stage. It seems to have been first thought of at the time of argument in the Court below. In the plaint stress was laid on the fact that the occupancy holdings were purchased before the amendment of the Bengal Tenancy Act of 1907. It was assumed that the Act as it stood before 1907 would govern the relationship between the parties created by the settlement of 1887 and it was contended that the Act as it stood before 1907 did not debar the plaintiffs from acquiring the status of occupancy râiyats in the lands of the settlement. It was nowhere suggested that there was no relationship of landlord and tenant between the plaintiff and the Government or that, the Bengal Tenancy Act did not govern the relationship between these two parties, nor was it suggested that the settlement constituted a farming of revenue and not of rent (vide para. 3 of the plaint). I would refer also to the petition of the plaintiff Company dated July 6, 1928 to the Sub-Deputy Collector of the Settlement of khâs mehâl Marichardiar. In that petition the position was made quite clear. The plaintiff made a distinction between the jotes acquired before 1907 and those acquired thereafter and claimed to be recorded as occupancy râiyats, with respect to the jotes purchased before 1907 and as intermediate tenure-holders with respect to the jotes purchased after 1907 (vide Ex. 14 printed at p. 162, Part II, Vol. I of the paper-book). In its memorandum of appeal to the Director of Land Records in 1912 the Midnapore Zemindari Co. Ltd. applied to set aside the order of the Assistant Settlement Officer whereby their prayer to be recorded as occupancy râiyats with respect to the property in suit had been refused. In this memorandum the plaintiff Company said that it was an ijârâdâr and it claimed to be recorded as occupancy râiyât in the land purchased before 1907 on the sole ground that the Bengal Tenancy Act as it stood before 1907 did not debar it from acquiring such right. The present attitude was not taken up then (vide Ex. 28, printed at page 66 of Part II, Vol. I of the paper-book). I do not suggest that the plaintiff has debarred itself by its previous conduct from taking up the position now adopted but I refer to these circumstances merely to show how the parties themselves interpreted the document Ex. 17(d).
Having decided that the plaintiff is an ijârâdâr or farmer of rents within the meaning of s. 22(3) of the Bengal Tenancy Act I shall now deal with the question whether by virtue of the provisions of this section the plaintiff and its predecessors were debarred from acquiring occupancy right in the land of the ijârâ. The section before the amendment of 1907 stood thus:—
A, person holding land as an ijârâdâr or farmer of rents shall not while so holding acquire a right of occupancy in any land comprised in his ijârâ or farm.
The word “acquire” has to be interpreted Learned counsel for the appellant would attach a narrow and technical meaning to this word. He says that the phrase “acquire a right of occupancy” means acquire a right of occupancy by operation of law as a result of 12 years occupation as a râiyat and that acquisition by purchase is not contemplated in this sub-section. The judicial decisions on this point are conflicting. In my opinion, whenever possible words should be given their ordinary dictionary meaning unless it is shown that they have acquired a special technical meaning. The word “acquire” has not anywhere in the Bengal Tenancy Act been given a special or technical meaning. In the plain sense of the word “acquire” means to gain by oneself and for oneself or to come into possession of; and I propose to attach this meaning to the word when construing s. 22(3) of the Bengal Tenancy Act as it stood before 1907. In the case of Ramrup Mahto v. Manners the word “acquire” in s. 22(3) of the Bengal Tenancy Act was given the narrow technical meaning which learned counsel for the appellant would attach to it. A contrary view was taken in two subsequent cases also of this Court where it was held that the word “acquire” means acquire by purchase or otherwise. I refer to the cases of Raghubir Mahto v. Manners and Sheonandan Singh v. Ramhit Singh. The amendment of s. 22(3) in 1907 has adopted the interpretation given to the word in the last two decisions, instead of using the word “acquire” alone in the section the words “acquire by purchase or otherwise” have been used. This amendment, in my opinion, was not made to introduce any change in the law but to clarify the meaning of the word “acquire” which had become somewhat clouded by the interpretations put upon the word by judicial decision. As stated above I propose to construe the word “acquire” to mean “acquire by any means whatsoever”. I hold that the plaintiff Company's predecessors and the plaintiff Company are debarred by reason of the provisions of s. 22(3), of the Bengal Tenancy Act from acquiring occupancy right in the lands in suit. This does not mean, however, that the plaintiff Company's predecessors got nothing by their purchase of 1,339-84 acres in execution of rent decrees. Section 22(3), of the Bengal Tenancy Act as it stood before 1907 debarred an ijârâdâr from acquiring occupancy right by purchase or otherwise in the land of his ijârâ, it did not debar him from acquiring a non-occupancy râiyati interest. The result is that if an ijârâdâr purchases an occupancy holding he acquires it as a non-occupancy holding. This was the view taken by Mookerji J. in the case of Sheonandan Singh v. Ramhit Singh (supra). The learned Subordinate Judge seems to have overlooked this aspect of the case. He seems to have thought that the plaintiff claimed occupancy right and nothing else in the land in suit. The plaint, however, indicates in prayer (ka) that there was an alternative declaration claimed, viz., a declaration to a “right of possession.” Even if there was no such prayer the plaintiff would be entitled to get this relief under the prayer (ga) for further and other reliefs. I hold, therefore, that the predecessors-in-interest of the plaintiff Company by their purchases before 1907 acquired a non-occupancy râiyati interest in the 1,339.84 acres of land which forms the subject matter of the suit. In the Court below it seems to have been argued and argued successfully that the plaintiff Company had abandoned its claim to occupancy right in 1911. The learned Subordinate Judge at p. 106 of Part I of the paper-book says categorically that the plaintiff had given up its claim to occupancy right. At p. 107 (ibid) he says again that the plaintiff Company “agreed not to claim the occupancy rights by filing the petition Ex. F before Mr. MacAlpin”. The learned Judge has fallen into serious error in this matter. The plaintiff Company never at any stage gave up this claim. Ex. E is printed at p. 151 of Part II, Vol. I of the paper-book; therein the plaintiff Company states explicitly that it accepts the lease from Government subject to its objection that it should be recorded as occupancy râiyat in respect of lands in which occupancy rights were acquired before 1907 and with the “reservation of their right to move the higher authorities for the above purpose”. The learned Subordinate Judge obviously forgot the import of Ex. E when he made the observations mentioned above. I will also deal now with the contention of the appellant that the Government recognised its occupancy right in the Petty Settlement of 1910 and also in the Diârâ Settlement of Rajshahi in 1914-1915. There is no force in this contention. In 1910 the Settlement Officer Mr. Mahmud at first refused to record the Company as occupancy râiyats. The then Collector Mr. Ezekiel, however, directed that the Company should be so recorded. This order was set aside by the Commissioner who held the view that the Company were debarred from acquiring such right (vide Ex. E. Order-sheet of the Court of the Settlement Officer, Nadia, re: Survey and Settlement of Marichardiar, p. 122, Part II, Vol. I of the paper-book and Ex. C, the order of the Commissioner at p. 156 ibid). Thus there was no recognition by the Government of the plaintiff's occupancy rights in 1910. As regards the statement that in 1914-1915 the plaintiff Company were recorded as occupancy râiyats of the lands in suit in Settlement Record of Rajshahi it is equally re inaccurate. Except in two instances there was no such entry made and learned counsel for the appellant Company very properly abandons this point. There was thus no abandonment by the plaintiff Company of its claim to occupancy right nor was there any recognition of such right in the plaintiff Company by the Government.
On behalf of the respondent it was pressed that this suit is barred by limitation and that the decision to the contrary of the learned Subordinate Judge is erroneous. The learned advocate puts his case regarding limitation in two ways. First, he points out that on January 26, 1912, the Commissioner of the Presidency Division rejected an appeal by the plaintiff Company against an order of the Collector refusing to record the Company as occupancy râiyat in the land in suit and directing them to be recorded as non-occupancy râiyat. In rejecting the appeal the Commissioner held that the plaintiff Company had not acquired occupancy right in the land in suit (vide Ex. C, certified copy of the decision in appeal of the Commissioner of the Presidency Division regarding the settlement of Marichardiar, p. 156, Part II, Vol. I of the paper-book). The defendant argues that the plaintiff should have brought this suit within six years of this decision as Art. 120 of the Limitation Act governs the present suit. Secondly, the defendant relies on Art. 14 of the Limitation Act which prescribes one year as the period of limitation for a suit to set aside an act or order of an officer of Government in his official capacity. It is contended that the present suit is one for setting aside the order of the Commissioner and that therefore it should have been brought within one year of 1912.
I shall deal first with the argument regarding the applicability of Art. 14 of the Limitation Act. The short answer to this contention is that the suit is for a declaration of the plaintiff's title and that it is not a suit for setting aside the order of the Commissioner. The plaintiff Company would be perfectly V satisfied if it can get the declaration prayed for without in any way disturbing any order passed by the Commissioner. To succeed in this suit it is not necessary for the plaintiff to get the Commissioner's order set aside. In my opinion this suit is not one which is affected by Art. 14 of the Limitation Act.
As regards the first branch of the argument on the question of limitation I do not think that there can be any doubt, that Art. 120 of the Limitation Act applies to this suit but I am not inclined to accept any other portion of the argument of the learned advocate for the respondent on this point. Article 120 says that the suit must be brought within six years from the date when the right to sue accrues. These last seven words are important. It is not said that limitation should run from the date when the right to bring such a suit first accrues. The plaintiff Company is in possession of the property. The order of the Commissioner has not dispossessed the plaintiff Company nor has it extinguished any right of the plaintiff in the property. In spite of the order of the Commissioner all the rights which the plaintiff had in the property before the passing of the order still exist. The order of the Commissioner cast a cloud on the plaintiff's title but the plaintiff was not bound to institute a suit to dispel the cloud. The plaintiff may have thought that the cloud was not worth troubling about or that the cloud would disappear of itself. I realise that after the lapse of 6 years the plaintiff would not be able to sue for the removal of the cloud created by this particular order of the Commissioner but if thereafter a fresh cloud was thrown upon the plaintiff's title it seems to me that a fresh cause of action would arise and the plaintiff would be entitled to sue upon this fresh cause of action if the suit be brought within six years of the accrual thereof. To hold otherwise would lead to iniquitous results. Suppose A were to do some act in 1900 challenging B's title to certain land and then remain quiescent for ten years; B who did not take a serious view of this challenge does nothing during these ten years. Thereafter A again does some act whereby B's title to the land is seriously put in question. It would be ridiculous to say that B could get no relief against this fresh invasion of his title because he had not taken steps against A within six years of 1900. In my opinion when there have been successive invasions of a person's right each invasion gives rise to a fresh cause of action and furnishes a fresh starting point for computation of the period of limitation. This principle would apply ter all types of suits, declaratory or otherwise; I would refer in this connection to the case of Joy Narayan Sen Ukil v. Srikantha Roy. Applying this principle to the facts of this case I find that the suit is not barred by limitation. The plaintiff Company bases its cause of action on the final publication of the record-of-rights which was made on May 31, 1929. In this record the plaintiff Company's interest in the land in suit was not recorded. This constituted a denial of the plaintiff's title and furnished the plaintiff Company with the case of action of the present suit. As this suit has been brought within six years of 1929 I hold that it is not barred by limitation.
One other point urged on behalf of the respondent needs consideration. It is pointed out that the persons who have been recorded as holding the lands in suit directly under Government have not been made parties to the suit and it is urged that in their absence this Court should mt give the plaintiff the declaration prayed for. It is said that the granting of a declaratory decree is discretionary and that this discretion should not be exercised in favour of the plaintiff when persons who would be affected by the decree are not before the Court. There is no point in this contention. These persons have not in any way challenged the plaintiff's title and they are neither necessary nor proper parties to the suit.
In the circumstances mentioned above the decree of the Court below must be modified and this appeal must be allowed in part. The plaintiff Company's title as non-occupany râiyat in the land in suit is declared. I agree with what my learned brother has said regarding the paper books and for the reasons mentioned by him in his judgment I concur in the order that he has passed in this appeal.
S.M
Appeal allowed in part.