1. These are appeals on behalf of the defendants in four suits for ejectment, brought by the plaintiffs-respondents upon the allegation that they were the landlords of the disputed lands. The Court of first instance dismissed the suits. Upon appeal the Subordinate Judge has decreed them. It appears that on the 21st December 1886 the pre-decessor-in-interest of the plaintiffs and one Doulatunnesa purchased about 242 bighas of land within which the disputed lands are situate, from the Nathpore Indigo Company. One of the points in controversy between the parties is as to the precise interest in the land which was conveyed by this deed. More than three years afterwards Doulatunnesa took three kabuliats from Pattan Mithu and Pocha, on the 17th June 1890, in respect of 15 cottahs, 12 1/2 pakhis and 19 pakhis of the land. The precise nature of the rights created in the defendant by these kebuliat is another point in controversy between the parties. In suit No. 255 the plaintiffs seek to eject the defendants from 4 pakhis out of 121/2 pakhis comprised in the tenancy of Mithu. In suit No. 256 the plaintiffs seek to eject the defendants from 4 pakhis out of the 15 comprised in the tenancy of Pattan. In suit No. 257 the plaintiffs seek to eject the defendants from 3 pakhis out of the 19 comprised in the tenancy of Pocha, and in suit No. 258 the plaintiffs seek to eject the defendants from 2 pakhis out of the 15 comprised in the tenancy of the Pattan. It is obvious, therefore, that plaintiffs in each suit seek to eject the defendant from a portion only of the land originally comprised in each tenancy. The circumstances under which they claimed to be entitled to do so may be shortly described. In 1897 there was a partition amongst the proprietors, the result of which was that the tenancy of 242 bighas purchased from the Nathpore Indigo Company fell into the shares of different proprietors. The plaintiffs apparently got 18 annas share of the land comprised in the tenancy less 6 bighas, and Doulatunnesa got these 6 bighas as well as three annas of the land comprised in that tenancy. The plaintiffs allege that the land in respect of which they seek decrees for ejectment have all fallen into their share and that, therefore, they are entitled to maintain this action for ejectment without joining as parties to the suit their former co-sharer Doulatunnesa. The Court of first instance held that the suits were bad for defect of parties, but apparently not on the ground that Doulatunnesa had not been made a party. What was alleged on the other hand was that the defendants had other persons as co-sharer tenants and that no decree for ejectment could be made in their absence. The Court of first instance also found that the property purchased in 1886 was in the nature of a tenure and that the status of the defendants was that of raiyats, who were consequently not liable to be ejected. In this view of the matter as previously stated, the Court of first instance dismissed the suits. Upon appeal to the Subordinate Judge, he has held that the suits are not bad for defect of parties. Upon the merits he has held that the status of the' defendants is that of under raiyats and that therefore the tenancy has been terminated under Section 49, Clause (b), of the Bengal Tenancy Act by an appropriate notice to quit. In this view the Subordinate Judge has decreed the suits. These decrees have been assailed in this Court on behalf of the appellants substantially on three grounds, namely, first, that the suits could not be maintained in the absence of Doulatunnesa, secondly, that the decision of the Subordinate Judge upon the question of the status of the defendants is erroneous, and thirdly, that there was a covenant entered into by the landlords at the time of the partition in 1897 under which the plaintiffs are precluded from ejecting the present appellants.

2. As regards the first of these contentions it has been pointed out by the learned vakil for the respondents, that no objection taken into the Court of first instance the ground that Doulatunnesa had not made a party. From an examination of the record it appears that this position is yell founded.

3. Doulatunnesa could be treated as a necessary party only for the protection of the defendants, and if they had omitted to take that objection in the Court of first instance at the proper stage they must be taken to have waived that objection. I cannot therefore, entertain the first ground taken on behalf of the appellants (S. A, 1513 of 1907, decided 19th March 1909),

4. The second ground taken raises what must be regarded as the substantial question in the case. The first point to be is what is. the nature of the tenancy was purchased from the Nathpore concern by the predecessor-in-interest of the present plaintiffs and Doulatunnesa, on the 21st December 1886. The property in question exceeded 100 bighas in area. The Court of first instance held with reference to the provisions of Section 5, Sub-section 5, of the Bengal Tenancy Act that the presumption laid down therein was applicable. It further held that there was no evidence to rebut that presumption inasmuch as there was nothing to show what was the condition of things at the time of the inception of the tenancy. The learned Subordinate Judge is clearly in error in holding that in as much as the tenancy had been created long before the bengal tenancy act came into force, the presumption referred to in Section 5, subsection 5, has no application. A reference to the decision of their Lordships of the Judicial Committee in Bengal Indigo Company v. Roghobur Das 24 C. 27 C. 272, (P.C.) 158 makes it manifest that the presumption, mentioned in Section 5 subsection 5, applies even to the case of a tenancy created before the Act came into force. In that case the tenancy in respect of which the presumption was made applicable had been created on the 14th September 1867, and their Lordships held that as the land held in tenancy by the owners of the Borouli Indigo Factory under the then respondent and his predecessor-in-title had from the first, that is, from 1867, been in excess and since 1872 largely in excess of the statutory limit, the appellants were not raiyats either occupancy or non-occupancy within the meaning of Section 5, Sub-section 5, of the Act of 1885. It is clear, therefore, that the presumption referred to in Section 5, Sub-section 5, applies to the land of the tenancy purchased in 1886. The learned vakil for the respondent, however, lays stress upon the observation of the learned Subordinate Judge, that even if that presumption applies, there is sufficient evidence to rebut the presumption. It is pointed out on behalf of the appellants on the other hand that, as observed in the judgment of the Court of first instance, there is no evidence on the record to show the condition of things that existed at the time of the inception of the tenancy. The learned vakil for the respondent has not been able to invite my attention to any part of the evidence which is directed to this particular point. As was pointed out by Field, J. in Durga Prosunno Ghose v. Kalidas Dut 9 C.L.R. 449 the only test of a 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 the rents from those raiyats, that is not a raiyati interest. If on the other hand, the land was jungle uncultivated or unoccupied and the tenant was let into physical possession of the land that would be a raiyati interest, and the nature of the interest so created would not be altered by the fact of the tenant subsequently sub-letting to under tenants. The Subordinate Judge, therefore, must re-consider this matter from the point of view of the principles just explained. He must, in the first instance, apply the presumption mentioned in Section 5, and Sub-section 5, of the Bengal Tenancy Act, he must next determine upon the evidence whether that presumption has been rebutted with reference to the state of things proved to have existed at the time of the inception of the tenancy. If necessary, he will be at liberty to take additional evidence directed towards this point. If the Subordinate Judge finds that the property purchased in 1886 was a tenure and that the defendants were raiyats, the next question that will arise will be whether they had either occupancy or non-occupancy rights. Upon this part of the case it must be observed that the kdbuliyats described these lands as khamar lands. No doubt the recitals in the kabuliyats are to some extent inconsistent. In one part it is stated that only a korfa tenancy was being created, but in another portion of the kabuliyat the interest created is described as raiyati, and the lands are described as knamar. If the lands demised are khamar strictly so called, they are the proprietor's private land. In order to determine whether the lands in question are khamar, reference may be made to the provisions of Section 120, Clause 3, of the Bengal Tenancy Act, read with Clause 2 of that section. Clause 3 provides that if any question arises in a Civil Court, as to whether a land is or is not a proprietor's private land the Court shall have regard to the rules laid down in this section for the guidance of revenue officers, these rules being contained in Sub-sections 1 and 2 of the same section.

5. With reference to Sub-section 2 it must be remarked that in determining whether any land, other than those mentioned in sub-section, ought to be regarded as a proprietor's private land, regard must be had to local custom and to the question whether the land was before the 2nd March 1883 specifically let as private land, and to any other evidence that may be produced, but it shall be presumed that the land is not a proprietor's private land until the contrary is shown. In this case the recital that the land is khamar is contained in the kabuliyat of 1890, which was executed subsequent to the 2nd March 1883. If, therefore, reliance is placed upon the circumstance that the land had previously been let as khamar it must be shown that this was before the 2nd March 1883. Upon this point also it is necessary that the Subordinate Judge should take evidence. I may further point out that if the land be found to be khamar and if, therefore, under Section 116, chapters V and VI are sought to be made inapplicable, it must be shown that the land is held under a lease for a term of years or under a lease from year to year. A further question would remain, whether the defendants would not in any event be entitled to notice to quit. If they do not occupy any higher position than that of ordinary raiyats they would be entitled to reasonable notice. Whether the notices given in this case are reasonable or not would be a, matter for the Court to consider. If the Subordinate Judge finds that the land comprised in the tenancy purchased on the 21st December 1886 did not form a tenure, but merely an occupancy holding, another important question would require decision. It has been argued on behalf of the appellant that on the 17th January 1890, when the kabidiyats, which are the foundation of the title of the defendants, were taken by the landlords, the landlords comprised the entire body of persons who were Zamindars and who purchased the tenancy from the Nath-pore Indigo concern. This fact has been controverted on the part of the defendants.

6. There is, however, no express finding by the Subordinate Judge on this point, and I am reluctant to express any opinion on this question of fact on the materials which have been placed before me. If, however, it is established as alleged by the appellants that on the 17th January 1890, the Zamindar's interest and the tenancy rights previously vested in the Nathpore Indigo concern had become vested in the same body of persons the question would arise whether there was or was not a merger. The observation of Mr. Justice Mitter in the case of Lal Bahadoor Singh v. E. Solano 10 C. 45 at page 49 would tend to indicate that there would be a merger. If there was a merger the question would arise whether the tenants under these Kabuliyats holding directly under the Zamindars would not be raiyats. If they are raiyats the question would arise whether, if the lands are established to be Khamar lands, their position would be that of occupancy or non-occupancy raiyats or that of mere tenants. If, however, it is established that there was no merger and that the position of the tenants under the kabuliyats of 1890 is that of under raiyats, then they are liable to be ejected. The learned vakil for the respondent is right in his contention that the case conies either under Section 49, Clause (a), or under Section 49, Clause (b), of the Bengal Tenancy Act. If it is found that after the expiration of the term of the written lease in 1895 no rent has been received either by Doulatunnesa or by the present plaintiffs, the suits may be treated as suits for ejectment of under-raiyats, on the expiration of the terms of the written leases and the mere circumstance that there has been delay in the institution of the suits would not affect the position of the plaintiffs. See the case of Ratan Lal Gir v. Farshi Bibi 34 C. 396. If on the other hand it is proved that after the expiration of the terms of the written lease, rent has been received from the defendants either by Daulatunnesa or by the present plaintiffs, they might be treated as holding under Section 49, Clause (b). In that view they would be liable to be ejected on service of proper notice to quit as pointed out in the case of Rabiram Das v. Uma Kant Chuckerbutty 2 C.W.N. 238. No doubt in the case before me the defendants were called upon to quit at the end of three months. That, however, would not vitiate the notice on the principle explained by this Court in the case of Naharullah Patwari v. Madan Gazi I C.W.N. 133. The substance of the matter, therefore, is that the Subordinate Judge must first determine the nature of the property purchased in 1886. He must next determine the status of the defendants whether they are raiyats with rights of occupancy or non-occupancy, or whether they are under raiyats. It is only in the event of their being proved to be under-raiyats that they would be liable to be ejected under section 49, clause (a) or clause (b).

7. The third ground taken on behalf of the appellant raises the question as to the effect of the covenant entered into by the landlords at the time of the partition. Upon this point the Courts below have disagreed. In the view I take of the question raised in the second ground of appeal, it is not necessary for me to express any opinion upon it. I would, therefore, leave this point open to be dealt with by the Subordinate Judge if occasion arises; if it is found that the defendants are under-raiyats and therefore liable to be ejected under Section 49, Clause (a) or (b), the Subordinate Judge would proceed to consider the effect of the clause in the consent decree made in the partition suit. If on the other hand he decides in favour of the defendants upon the question of the status, it would be unnecessary to decide this question. The result, therefore, is that the appeals must be allowed, the decrees of the Subordinate Judge die-charged and the cases remanded to him to be dealt with on the lines laid down in this judgment. Costs of these appeals will abide the result.