PRIVY COUNCIL

                  Midnapur Zamindari Co. Ltd

                  Vs.

                    Naresh Narayan Roy
(Lords Dunedin, CJ, Moulton and Mr. Ameer Ali. JJ.)

                  7.12.1920

                  JUDGMENT

Lord Dunedin CJ.

1. This is an appeal from the judgment of the High Court at Calcutta, affirming a
judgment of the Subordinate Judge, by which he decreed Khas possession of certain
reformed and accreted chur lands in favour of the plaintiff. The plaintiff is a Zamindar,
and the lands in question are admittedly within his Zamindari. The existent lease of
the lands having, as he contended, expired, he gave the necessary notice to terminate
the tenancy. The appellants plead that they are occupancy tenants and as such entitled
to maintain possession under the terms of Act X of 1859 (the Bengal Rent Act).

2. The appellants are the successors by transfer to the firm of Jardine, Skinner and
Co., who were prior to 1864, in occupancy of the lands, the Zemindar at that time
being the respondent's father, to whom he has succeeded. In that year the respondent's
father raised an action against Jardine, Skinner and Co., claiming the lands in
question. That suit was compromised. At the same time Jardine, Skinner and Co., took
a lease of the whole taluk within which the lands were situated, Patta and kabuliyat
were executed.

3. The kabuliyat executed by the Manager of Jardine, Skinner and Co., bears as
follows:-

       " I having applied for a temporary ijara settlement of all the makals, etc.,
       appertaining to your Zamindari and putni taluq.........you grant me an ijara
       settlement and ijara patta for a term of eight years from 1271 to 1278 B.S.
       fixing Rs. 7,500 as the annual rent, exclusive of collection charges."
4. The kabuliyat then proceeds to incorporate the settlement as follows :

" You have instituted against me a suit, No. 19 of 1864, in the Sudder Amin
       Adalat of the District of Murshidabad, claiming a 4 annas 13 gandahs 1 kara 1
       karant share of the reformed and accreted chur lands of Bajupur, Krishnapur,
       Dinurpara alias Muniek Chusk, appertaining to taraf Bhangsibadanpur, and a 7
       annas share of the reformed and accreted chur land of ashariadaha appertaining
       to Pargunnah Kazirhatta. Creating a jote of the same and fixing Rs. 1,300 as its
       yearly rent, you include the same also in the aforesaid ijara rent. In respect of
       the same, the stipulation is that after the expiry of the term of this ifara, patta
       and kabuliyat will be given and taken, settling the rent of the aforesaid chur
       land in your nij share, at a fair rate, according to the proper rate prevailing in
       the villages, either amicably or by suit, that until you settle the rent in the
       aforesaid method, according to the proper rate prevailing in the villages. I will
       pay up to that time the aforesaid yearly rent of Rs. 1,300 in twelve monthly
       instalments as per Kistbandi, and in default of any Kist, I will pay interest at
       Re. 1 per cent, per month, and that if after the fair rent is settled according to
       the proper rate prevailing in the villages I refuse to pay that rent, then you will
       bring the lands under khas possession by evicting me therefrom; and I shall not
       be able to raise any objection to the same."
5. The case accordingly depends upon the proper interpretation of this clause in the
ijara. The learned Judges of the appellate Court have held that the clause is practically
indistinguishable from the clause which was the subject of decision by this Board in
the case of Jardine, Skinner and Co. v. Sarat Soondavi Debi 1 There, as here, there
was a lease of other lands besides the lands in question, and the words of the
ktabuliyat are as follows :

       " Having fixed a yearly rent of Rs. 609.4 as, for your nij share of 20,950 bighas
       describing them as per boundaries given in the schedule below, you have
       included it in the aforesaid ijara, rent of Rs. 4,417-9 as, 5 pies. I shall be in
       possession of the said chur as a jote. Upon the expiration of the term of the ijara
       of the said mahals, a patta and kabukliyat will be respectively given and taken
       in respect of the jote, regard being had to the quantity of the land and amount of
       rent that shall be determined to belong to your nij share in accordance with the
       productive power of the land within the area determined by a measurement of
       the said chur. If I do not take a patta and give a kabuliyat within two months
       after the fixing of the rate of that land, you will make settlement with others."
6. In that case, as here, Messrs. Jardine, Skinner and Co., claimed to be occupancy
tenants, but the High Court and this Board negatived that contention, and held that the
agreement merely amounted to a right of renewal, and did not create either an
occupancy right or vest in the defendants a new term of years.

7. Now if the clause in that case be compared with the clause in this, it will be seen
that it is for all practical purposes identical. The clause employs the term "jote" and
speaks of a "nij" share. "Jote" is a general term and it is not necessarily equivalent to "
raiyati jote". In the present case it is shown in another place that the term "raiyati jote"
is used when an undoubted right of occupancy is being dealt with.

8. The only distinction that can be drawn between the clause in that case and in this is
that a special covenant is inserted in this case fixing the old rent of Rs. 1,300 as the
rent to be paid on holding over till such time as a new rent is fixed while in the other
case there is silence, as to this. But this covenant is nothing more than an expression
of what the law would hold without it and cannot in their Lordships opinion, alter the
general construction of the document.

9. The Appellant's Counsel further urged that the present case was not ruled by the
other because he said that in this case there was an antecedent occupancy right
whereas there was no such in the other case, and that in the light of that fact the
agreement must receive a different interpretation. To make good such an argument the
onus is obviously on the appellants to prove such an antecedent right.

10. In their Lordships' view they fail to do so, for several reasons. In the first place,
they bring no clear proof on the subject.

11. But, further, there is a very significant 'proceeding in a litigation which arose
between the parties in 1877. That was after the expiry of eight years from 1864 and
the respondent's father sued for khas possession. The defendants, Jardine, Skinner and
Co., pleaded (i) an occupancy right and (ii) that the suit was premature, no attempt
having been made to settle the terms of a new lease under the right to get a renewal for
one more term. The Subordinate Judge held that there was no occupancy right but that
the suit was premature.

12. Appeal was taken to the High Court and they in affirming the judgment, said as
follows, after expressing the view that the action was premature:

       " If the respondents (defendants) had been satisfied with this judgment we
       should have been inclined to dismiss the appeal with costs, but not withstanding
       the suggestion of the Court the Government Pleader, who appears for the
       tenants thought it advisable to lay before us a cross-appeal. That cross-appeal is
       against the finding of the lower Court that the defendants had not a right of
       occupancy in this land. It was contended that they had such right of occupancy
       because the land leased to them is called a jote and because from the date of the
       lease granting them that jote down to the present time they have occupied it for
       twelve years and upwards, and consequently must be regarded as having been
       given a right of occupancy. It seems to us that if there is anything clear in
       regard to a right of occupancy as defined by Act X of 1859, it is a right accruing
       to a raiyat and not to persons who are middlemen. It would be, we think, a
       monstrous straining of the law to apply the term 'right of occupancy' to such an
       estate as this.
Their Lordships do not consider that this will be found an actual plea of res judicata,
for the defendants, having succeeded on the other plea, had no occasion to go further
as to the finding against them : but it is the finding of a Court which was dealing with
facts nearer to their ken than the facts are to the Board now, and it certainly creates a
paramount duty on the appellants to displace the finding, a duty which they have not
been able to perform.

Lastly there is the internal evidence from the ijara itself, where the jote is said to be
created - an expression little suited to the recognition of a pre-existing right.

On the whole matter their Lordships agree in all points with the judgment of the
learned Judges of the appellate Court and they will humbly advise His Majesty to
dismiss the appeal with costs.

Appeal dismissed.

Cases Referred.

1 (1877), 5 IA 164 : 3 CLR 140 : 3 Sar 847 (PC).